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songer_respond2_3_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 "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. Hazel Anna WOLF, Appellant, v. John F. BOYD, District Director, Immigration and Naturalization Service; and William P. Rogers, Attorney General of the United States, and all persons acting with, through or for them, Appellees. No. 16944. United States Court of Appeals Ninth Circuit. Feb. 1, 1961. Philip L. Burton, John Caughlan, Seattle, Wash., Siegfried Hesse, Berkeley, Cal., Francis J. McTernan, Garry, Dreyfus, McTernan & Keller, San Francisco, Cal., for appellant. Charles P. Moriarty, U. S. Atty., Richard F. Broz, Asst. U. S. Atty., Seattle, Wash., Charles Gordon, St. Paul, Minn., Regional Counsel for Northwest Region, Immigration and Naturalization Service, for appellee. Before HAMLEY, MERRILL and KOELSCH, Circuit Judges. MERRILL, Circuit Judge. On May 13, 1960, appellant, a native of Canada and a resident of the United States since December 26,1922, was notified by appellee Boyd to surrender herself into his custody on June 12, 1960, for immediate deportation to London, England. These proceedings in habeas corpus were then initiated by appellant on May 24,1960. In support of her petition, appellant contended, first, that, although she has never been naturalized, she is an American citizen by birth and is not subject to deportation, and, second, that her scheduled deportation to England is repugnant to the Constitution of the United States. In addition to discharge, appellant seeks a declaration of her status as a citizen and injunctive relief against deportation. To this end she moved in the court below for the convocation of a three-judge court pursuant to 28 U.S.C. § 2282. Appellees moved for summary judgment and for an order denying convocation of a three-judge court. The District Court ruled that no substantial constitutional question was presented and accordingly denied convocation of a three-judge court. Summary judgment was rendered in favor of appellees upon the issue of appellant’s citizenship. This appeal asserts that the court was in error in both respects. We need consider only the sub-stantiality of the constitutional question. Following the deportation order, appellant had designated Canada, the country of her birth and from which she had entered the United States, as the place to which she wished to be deported. Canada refused to accept her, ruling that by. appellant’s marriage to an American citizen on December 30, 1926, she had lost Canadian citizenship. Section 243(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1258 (a), specifies the places to which an undesirable alien may be deported. In substance it provides for deportation to the country designated by the alien, if acceptable to such country; if not, then to any country of which such alien is a subject, national or citizen, if such country is willing to accept him into its territory. If not, then deportation shall be directed by the Attorney General to any country having such connection with the alien respecting birth, residence or entry into the United States, as is specified in six subparagraphs. Then follows subpara-graph 7: “If deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.” When Canada refused to accept appellant, the Attorney General, under § 243 (a) (7), sought to obtain England’s consent to accept her. England consented. Appellant challenges the constitutionality of subparagraph 7, since the result is deportation to a country in which the alien has never lived and with which she has had no actual personal contact whatsoever — a country which in fact is not and never was her own, but is wholly foreign to her. She contends that expulsion from the United States under these circumstances cannot be regarded as deportation; that it cannot be justified as civil regulation of immigration and has become criminal punishment imposed without due process of law. The issue upon this appeal is not whether appellant is correct in her construction of her constitutional rights, but whether her contentions raise a substantial constitutional question. In the words of the Supreme Court, a question is to be regarded as insubstantial if “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of .controversy.” Hannis Distilling Company v. Mayor and City Council of Baltimore, 216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482. It must be recognized, in that area dealing with the deportation of long term residents of the United States, that the law is in a somewhat fluid and uncertain state and that such law as has been announced is being subjected to thoughtful criticism. Under these circumstances, any attempt to extend the administrative power to deport long term residents beyond that which so far has been recognized may be said to pose a constitutional question. We are now faced for the first time with an attempt to deport permanently a long term resident to a country with which she has had no personal tie or connection whatsoever. The deportation is not, on a presumably temporary basis, to the most convenient way station from which she may ultimately reach her proper home. The issues presented by these circumstances have not clearly been settled by existing precedent and the constitutional question which they present is not, in our view, an insubstantial one. The case, then, is one for a three-judge District Court. Florida Lime & Avocado Growers, Inc. v. Jacobsen, 1960, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568. Such being the case, the District Court was without jurisdiction to proceed to judgment upon the question of citizenship and this court is without jurisdiction to pass upon that issue. Two Guys from Harrison-Allentown, Inc. v. McGinley, 3 Cir., 1959, 273 F.2d 954. Reversed and remanded with instructions that summary judgment be set aside and that a three-judge District Court be convened for the purpose of entertaining appellant’s petition. . The marriage on that date took place in Portland, Oregon. On July 10, 1942, it was terminated by divorce. . Appellees also support the deportation upon the ground that although appellant had lost Canadian citizenship upon her marriage she had retained her citizenship in the United Kingdom under the British Nationality Act. The record suggests that this may be so under English law and was the reason for England’s acceptance of deportation. The record, however, is not sufficient to establish the fact of appellant’s English citizenship. We have no official acknowledgment to this effect by England nor any evidence of English and Canadian law upon the subject. The question of the substantiality of the constitutional question presented by this proposition is, therefore, not before us on this appeal. . Mr. Justice Jackson, dissenting in United States v. Spector, 1952, 843 U.S. 109, 178, 72 S.Ct. 591, 596, 96 L.Ed. 1353, stated: “Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations. That doctrine, early adopted against sharp dissent has been adhered to with increasing logical difficulty as new causes for deportation, based not on illegal entry but on conduct after admittance, have been added, and the period within which deportation proceedings may be instituted has been extended.” Doubts have been expressed by other members of the court in Harisiades v. Shaughnessy, 1952, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586; Galvan v. Press, 1953, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Rowoldt v. Perfetto, 1957, 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed. 140; Perez v. Brownell, 1958, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603; Abel v. United States, 1960, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. . See: Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident, 68 Yale L.J., 1578, 69 Yale L.J., 262. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? A. Department of Agriculture B. Department of Commerce C. Department of Defense (includes War Department and Navy Department) D. Department of Education E. Department of Energy F. Department of Health, Education and Welfare G. Department of Health & Human Services H. Department of Housing and Urban Development I. Department of Interior J. Department of Justice (does not include FBI or parole boards; does include US Attorneys) K. Department of Labor (except OSHA) L. Post Office Department M. Department of State N. Department of Transportation, National Transportation Safety Board O. Department of the Treasury (except IRS) P. Department of Veterans Affairs Answer:
sc_authoritydecision	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. UNITED STATES v. MAZURIE et al. No. 73-1018. Argued November 12, 1974 Decided January 21, 1975 Rehnquist, J., delivered the opinion for a unanimous Court. Harry B. Sachse argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Johnson, Jacques B. Gelin, and Lawrence E. Shearer. Charles E. Hamilton argued the cause and filed a brief for respondents. Jerome F. Statkus, Assistant Attorney General, argued the cause for the State of Wyoming as amicus curiae urging affirmance. With him on the brief was Sterling A. Case, Deputy Attorney General. Marvin J. Sonosky and Glen A. Wilkinson filed a brief for the Shoshone and Arapahoe Tribes of the Wind River Indian Reservation as amici curiae urging reversal. Mb. Justice Rehnquist delivered the opinion of the Court. The respondents were convicted of introducing spirituous beverages into Indian country, in violation of 18 U. S. C. § 1154. The Court of Appeals for the Tenth Circuit reversed. 487 F. 2d 14 (1973). We granted certiorari, 415 U. S. 947 (1974), in order to consider the Solicitor General’s contentions that 18 U. S. C. § 1154 is not unconstitutionally vague, that Congress has the constitutional authority to control the sale of alcoholic beverages by non-Indians on fee-patented land within the boundaries of an Indian reservation, and that Congress could validly make á delegation of this authority to a reservation’s tribal council. We reverse the Court of Appeals. I The Wind River Reservation was established by treaty in 1868. Located in a rather arid portion of central Wyoming, at least some of its 2,300,000 acres have been described by Mr. Justice Cardozo as “fair and fertile,” Shoshone Tribe v. United States, 299 U. S. 476,486 (1937). It straddles the Wind River, with its remarkable canyon, and lies in a mile-high basin at the foot of the Wind River Mountains, whose rugged, glaciated peaks and ridges form a portion of the Continental Divide. The reservation is occupied by the Shoshone and Arapahoe Tribes. . Although these tribes were once “ancestral foes,” ibid., they are today jointly known as the Wind River Tribes. As a result of various patents, substantial tracts of non-Indian-held land are scattered within the reservation’s boundaries. It was on such non-Indian land that respondents Martin and Margaret Mazurie operated their bar, which did business under the corporate name of the Blue Bull, Inc. Before 1953 federal law generally prohibited the introduction of alcoholic beverages into “Indian country.” 18 U. S. C. § 1154 (a). “Indian country” was defined by 18 U. S. C. § 1151 to include non-Indian-held lands “within the limits of any Indian reservation.” In 1949, the term was given a narrower meaning, insofar as relevant to the liquor prohibition, so as to exclude both fee-patented lands within “non-Indian communities” and rights-of-way through reservations. Act of May 24, 1949, 63 Stat. 94, 18 U. S. C. § 1154 (c), supra, n. 1. The quoted term is not defined, a fact which creates problems with which we shall shortly deal. In 1953 Congress passed local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated. Act of Aug. 15,1953, 67 Stat. 586,18 U. S. C. § 1161 The Wind River Tribes responded to this option by adopting an ordinance which permitted liquor sales on the reservation if made in accordance with Wyoming law. When the Blue Bull originally opened, a liquor license had been issued to it by Fremont County, Wyo., and its operation was therefore consistent with that tribal ordinance. But in 1971 the Wind River Tribes adopted a new liquor ordinance, Ordinance No. 26. That ordinance required that retail liquor outlets within Indian country obtain both tribal and state licenses. In 1972, the Mazuries applied for a tribal license, after warnings that they would be subject to criminal charges if they continued to operate without one. The tribes held a public hearing which Martin Mazurie and the Ma-zuries’ lawyer attended. Witnesses protested grant of the license, complaining of singing and shooting at late hours, disturbances of elderly residents of a nearby housing development, and the permitting of Indian minors in the bar. The application was denied. Thereafter, the Mazuries closed the Blue Bull. Three weeks later they reopened it. It remained in operation for approximately a year, until federal officers seized its alcoholic beverages, and this criminal prosecution was initiated. The case was tried to the District Court without a jury. Since most of the factual issues were disposed of by stipulations, the testimony at trial primarily dealt with whether the bar was within “Indian country.” On the basis of testimony about the Blue Bull’s location, and about the racial composition of residents of the surrounding area, the court concluded that the bar was so located. Holding that federal authority could reach non-Indians located on privately held land within a reservation’s boundaries, the court entered judgments of conviction. Each respondent was fined $100. The Court of Appeals reversed the convictions. It concluded that the prosecution had not carried its burden of proving beyond a reasonable doubt that the bar was not excluded from Indian country by the § 1154 (c) exception for “fee-patented lands in non-Indian communities.” This conclusion was tied directly to the more basic holding: “[T]he terminology of 'non-Indian community’ is not capable of sufficiently precise definition to serve as an element of the crime herein considered .... The statute is thus fatally defective by reason of this indefinite and vague terminology.” 487 F. 2d, at 18. As a second basis for reversal, the court held that insofar as 18 U. S. C. § 1161 authorized Indian tribes to adopt ordinances controlling the introduction by non-Indians of alcoholic beverages onto non-Indian land, it was an invalid congressional attempt to delegate authority. The Court of Appeals also suggested that Congress itself could not regulate the sale of alcohol by non-Indians on fee-patented non-Indian lands within Indian reservations. II It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. National Dairy Products Corp., 372 U. S. 29 (1963). In determining whether § 1154 (c) is unconstitutionally vague as to respondents, we must therefore first consider the evidence as to the location of the Blue Bull. The evidence showed that the bar was located on the outskirts of Fort Washakie, Wyo., an unincorporated village bearing the name of the man who was chief of the Shoshones during their early years on the Wind River Reservation. Shoshone Tribe v. United States, 299 U. S., at 486; Harmston, supra, n. 2, at 3-4. Fort Washakie is the location of the Wind River Agency of the Bureau of Indian Affairs, and of the Tribal Headquarters of the Wind River Tribes. One witness testified that the village was an “Indian community.” App 49. The evidence also showed that of the 212 families living within a 20-square-mile area roughly centered on the Blue Bull, 170 were Indian families, 41 were non-Indians, and one was mixed. A large-scale United States Geological Survey map was introduced to show the limits of this housing survey. It indicates that the survey included all settlements within the Fort Washakie area, and that the nearest not-included concentrations of housing were at Saint James Church and Ethete, some four miles beyond the boundaries of the survey and some six miles from Fort Washakie. The evidence also established that the state school serving Fort Washakie, and located about two and one-half miles from the Blue Bull, had a total enrollment of 243 students, 223 of whom were Indian. Other evidence bearing on whether the Blue Bull was located in a non-Indian community was Martin Mazurie’s testimony that the bar served both Indians and non-Indians, and that: “We are kind of out there by ourselves, you know.” App. 70. A transcript of the hearing on the Mazuries’ application to the tribes for a retail liquor license was also admitted at the trial. That transcript indicates that the Blue Bull was located near a public housing development populated largely if not entirely by Indians. Residents of this development complained that persons leaving the bar late at night, and for one reason or another having either no transportation or no destination, would wander into the development. There was no testimony that the Blue Bull was in a non-Indian community. The defense did obtain acknowledgments by prosecution witnesses that they could not precisely state the boundaries of the Fort Washakie Indian community. Otherwise, examination by the defense was directed at establishing that the term “Indian” was without precise meaning, and that the State of Wyoming generally had jurisdiction over non-Indians and their lands within the reservation. We think that the foregoing evidence was sufficient to justify the District Court’s implied conclusion that Fort Washakie and its surrounding settlements did not compose a non-Indian community. We do not read the opinion of the Court of Appeals as reaching a conclusion contrary to that which we have just stated. That court instead based its decision on the proposition that such proof did not go far enough, a view generated by its opinion of the requirements this statute must meet in order to avoid the vice of vagueness. The Court of Appeals was looking for proof beyond a reasonable doubt of precisely defined concepts of “Indian” and “community.” We gather that it expected persons treated as “Indians” in the housing and school surveys to be proved to satisfy a specific statutory definition. Similarly, it apparently expected that proof concerning the “community” should have conformed to some specific statutory definition, presumably one keyed to a geographical area with precise boundaries. We believe that the Court of Appeals erred by holding that the Constitution requires proof of such precisely defined concepts. The prosecution was required to do no more than prove that the Blue Bull was not located in a non-Indian community, where that term has a meaning sufficiently precise for a man of average intelligence to “reasonably understand that his contemplated conduct is proscribed.” United States v. National Dairy Products Corp., 372 U. S., at 32-33. Given the nature of the Blue Bull’s location and surrounding population, the statute was sufficient to advise the Mazuries that their bar was not excepted from tribal regulation by virtue of being located in a non-Indian community. Ill The Court of Appeals, expressed doubt that “the Government has the power to regulate a business on the land it granted in fee without restrictions.” 487 F. 2d, at 18. Because that court went on to hold that even if Congress did possess such power, it could not be delegated to an Indian tribe, that court did not find it necessary to resolve the issue of congressional power. We do, however, reach the issue, because we hereinafter conclude that federal authority was properly delegated to the Indian tribes. We conclude that federal authority is adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians. 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.” This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of aleoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country. United States v. Holliday, 3 Wall. 407, 417-418 (1866); United States v. Forty-three Gallons of Whiskey, 93 U. S. 188, 194-195 (1876); Ex parte Webb, 225 U. S. 663, 683-684 (1912); Perrin v. United States, 232 U. S. 478, 482 (1914); Johnson v. Gearlds, 234 U. S. 422, 438-439 (1914); United States v. Nice, 241 U. S. 591, 597 (1916). Perrin v. United States, supra, demonstrates the controlling principle. It dealt with the sale of intoxicating beverages within premises owned by non-Indians, on privately held land in an organized non-Indian municipality. The land originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United States. The cession agreement, as ratified and confirmed by Congress, specified that alcoholic beverages would never be sold on the ceded land. The land was subsequently opened to private non-Indian settlers. In upholding Perrin’s conviction, this Court stated: “The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a State, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority ‘to regulate commerce with foreign nations, and among the several States, and with the Indian tribes,’ and in part from the recognized relation of tribal Indians to the Federal Government.” 232 U. S., at 482. Seymour v. Superintendent, 368 U. S. 351 (1962), is a more recent indication of congressional authority over events occurring on non-Indian land within a reservation. The case concerned an Indian’s challenge to a state burglary conviction. The Indian contended that because the offense took place within “Indian country,” it was within the exclusive jurisdiction of the United States by virtue of 18 U. S. C. § 1153. This Court agreed, despite the fact that the crime occurred on land patented in fee to non-Indians. While the opinion did not address the constitutional issue, it did reject a variety of statutory arguments for excluding the crime’s situs from 18 U. S. C. § 1151’s definition of “Indian country.” Of significance for our purposes is the fact that Congress’ authority to define “Indian country” so broadly, and to supersede state jurisdiction within the defined area, went both unchallenged by the parties and unquestioned by this Court. We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bull. IV The Court of Appeals said, however, that even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows: “The tribal members are citizens of the United States. It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate 'nation’ of' United States citizens within the boundaries of the United States which has any authority, other than as landowners, over individuals who are excluded as members. “The purported delegation of authority to the tribal officials contained in 18 U. S. C. § 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned.” 487 F. 2d, at 19. This Court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Co. v. Ryan, 293 U. S. 388 (1935). Those limitations are, however, less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter. United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319-322 (1936). Thus it is an important aspect of this case that 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. Kagama, 118 U. S. 375, 381-382 (1886); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 173 (1973). Cases such as Worcester, supra, and Kagama, supra, surely establish the proposition that Indian tribes within “Indian country” are a good deal more than “private, voluntary organizations,” and they thus undermine the rationale of the Court of Appeals’ decision. These same cases, in addition, make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. We need not decide whether this independent authority is itself sufficient for the tribes to impose Ordinance No. 26. It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress’ decision to vest in tribal councils this portion of its own authority “to regulate Commerce ... with the Indian tribes.” Cf. United States v. Curtiss-Wright Export Corp., supra. The fact that the Mazuries could not become members of the tribe, and therefore could not participate in the tribal government, does not alter our conclusion. This claim, that because respondents are non-Indians Congress could not subject them to the authority of the Tribal Council with respect to the sale of liquor, is answered by this Court’s opinion in Williams v. Lee, 358 U. S. 217 (1959). In holding that the authority of tribal courts could extend over non-Indians, insofar as concerned their transactions on a reservation with Indians, we stated: “It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U. S. 553, 564-566.” Id., at 223 (citations omitted). For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the convictions of respondents reinstated. Reversed. Title 18 U. S. C. § 1154 provides in pertinent part: “(a) [W]hoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both. “(c) The term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.” F. Harmston, Wind River Basin 2 (1953); H. Granger et al., Mineral Resources of the Glacier Primitive Area, Wyoming, Geological Survey Bull. No. 1319-F, pp. F2-F5 (1971). Title 18 U. S. C. § 1151 provides in pertinent part: “Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country,’ as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation . . . .” Title 18 U. S. C. § 1161 provides: “The provisions' of sections 1154, 1156, 3113, 3488, and 3618, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both- with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, .and published in the Federal Register.” The ordinance was properly approved by the Secretary of the Interior and published in the Federal Register. 37 Fed. Reg. 1253-1254 (1972). The Blue Bull was reopened after the decision of the Court of Appeals. In April 1974, however, Fremont County refused to renew its license and it was again closed. Brief for United States 5 n. 4; Brief for Respondents 20 n. 8. It was stipulated that the Blue Bull was being operated without the license required by Ordinance No. 26, that alcoholic beverages had been sold at the Blue Bull, that the Blue Bull was located within the Wind River Reservation, but on land which it owned in fee, and that the Blue Bull had been properly licensed by state authorities. The District Court did not make a specific finding of fact that the Blue Bull was not located in a non-Indian community. The court did find that it was in “Indian Country,” that it was situated “at a site known as Fort Washakie, Wyoming,” that “Fort Washakie is not an incorporated non-Indian community with recognized boundaries,” and that the bar had been operated in violation of 18 U. S. C. § 1154 (which contains the exclusion from “Indian country” of fee-patented lands in non-Indian communities). The ambiguity in the trial court’s findings is readily explained by respondents’ failure to focus on the issue at trial. The nature of defense testimony and cross-examination is discussed infra, at 552. That respondents failed to contest the issue is further established by the motion to dismiss at the close of the Government’s evidence. The basis of the motion was failure “to prove beyond a doubt that [respondents] are operating in an Indian community,” App. 64 (emphasis added), which even if true is plainly irrelevant under the wording of § 1154 (c). Respondents’ counsel then proceeded with an argument based on respondents’ unrestricted fee ownership of the property on .which the bar was located. App. 64. In addition, respondents’ counsel did not dispute the court's statement at the close of the trial that the “sole issue” was “whether or not the Tribal Council has jurisdiction over deeded land held by these parties in fee . . . .” 2 Record on Appeal 140. The court went on to state: “[I]t is in Indian Country. There is not any question. You do not need to cite a single case that this bar and this ten acres is [sic] located in Indian Country. I am not saying it is Indian land, but it is Indian Country.” Ibid. Again, respondents’ counsel made no objection. He also apparently did not seek to focus the court’s attention on the issue by filing either a post-trial brief or proposed findings of fact and conclusions of law; while both parties had the opportunity to make such submissions, only the prosecution’s appears in the record on appeal. We assume, arguendo, as has the Government in its arguments before this court, that the prosecution has the burden of proving that the § 1154 (c) statutory exceptions are not applicable. Because of this assumption, and because we conclude that the Government in any event did carry this burden, we need not consider whether the exception must be pleaded and proved by criminal defendants. Cf. United States v. Vuitch, 402 U. S. 62, 70 (1971) (dealing with a criminal statute in which "an exception is incorporated in the enacting clause of a statute”). (Emphasis supplied.) We note that the § 1154 (e) exception is available for fee-patented lands which are in non-Indian communities, rather than for those which are not in Indian communities. This fact renders irrelevant the inability of prosecution witnesses to specify precise boundaries of the Fort Washakie Indian community. We need not detain ourselves with an issue which seemed to cause the Court of Appeals some difficulties, that of what qualifies a person as an "Indian.” The record plainly establishes that, in the circumstances of this case, the distinction between Indians and non-Indians was generally understood. Those who testified about the housing and school surveys displayed no difficulty in making such classifications. Nor did Mr. Mazurie. He testified that when there was trouble at his bar he would call the county sheriff to deal with a non-Indian, but would call the tribal police to deal with an Indian. When his counsel questioned him as to how he determined which was which, he simply replied: “Because I knew them.” App. 70. It is undisputed that the Wind River Tribes have not been emancipated from federal guardianship and control. There is thus no doubt that this case is properly analyzed in terms of Congress exclusive constitutional authority to deal with Indian tribes. Respondents attempt to bolster this claim with the argument that “the basic rights and principles of equal protection and due process [are] currently not available to non-Indians within the tribal councils.” Brief for Respondents 24. However, respondents make no claim that the tribal decision to deny them a license constituted a denial of equal protection or that it resulted from a hearing which lacked due process. Whether and to what extent the Fifth Amendment would be available to correct arbitrary or-discriminatory tribal exercise of its delegated federal authority must therefore, await decision in a case in which the issue is squarely presented and appropriately briefed. This observation is also applicable with regard to § 202 of Pub. L. 90-284, 82 Stat. 77, 25 U. S. C. §1302, which provides: “No Indian tribe in exercising powers of self-government shall ... (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” Quite apart from these potential sources of protection against arbitrary tribal action, such protection is to some extent assured by § 1161’s requirement that delegated authority be exercised pursuant to a tribal ordinance which itself has been approved by the Secretary of the Interior. 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_appel2_1_3	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed 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. UTILITIES SERVICES ENGINEERING, INC., a Colorado Corporation and Blackinton & Decker, Inc., a Colorado Corporation, Plaintiffs-Appellants, v. COLORADO BUILDING AND CONSTRUCTION TRADES COUNCIL, an unincorporated association, Defendant-Appellee. No. 76-1420. United States Court of Appeals, Tenth Circuit. Argued and Submitted Sept. 23, 1976. Decided Feb. 3, 1977. Rehearing Denied March 7, 1977. Robert G. Good, Denver, Colo., for plaintiffs-appellants. Philip Hornbein, Jr., Denver, Colo. (Hornbein, MacDonald & Fattor, Denver, Colo., on the brief), for defendant-appellee. Before McWILLIAMS, BREITENSTEIN and BARRETT, Circuit Judges. McWILLIAMS, Circuit Judge. The issue is whether the district court had jurisdiction to enjoin certain picketing. The district court concluded that under the several provisions of the Norris-LaGuardia Act, 29 U.S.C. § 101, et seq., it had no jurisdiction to enjoin peaceful picketing which arose out of a “labor dispute.” This appeal followed. The action was brought by Utilities Services Engineering, Inc. and Blackinton & Decker, Inc. against the Colorado Building & Construction Trades Council. Both plaintiffs are contractors engaged in the building and construction industry. The defendant is an unincorporated association comprised of various labor unions whose members are engaged in the building and construction industry. From the complaint we learn that Utilities is presently under contract with JohnsManville Corporation to perform certain electrical maintenance work at the JohnsManville Research and Development Center located at Ken Caryl Ranch in the County of Jefferson, State of Colorado. Decker-is also presently under contract with JohnsManville to perform certain construction work in progress at the Johns-Manville World Headquarter’s building at the same Ken Caryl Ranch. The Research and Development Center, where Utilities performs its electrical maintenance work, is about one and one-half miles from the World Headquarter’s building, where Decker is performing its construction work. Decker employs at the World Headquarter’s construction site some 450 union craftsmen. Utilities is not a signatory to any collective bargaining agreements with any labor organization. On or about April 5, Í976, the Trades Council threatened in writing to picket Utilities unless and until Utilities entered into an agreement with the Trades Council concerning the subcontracting of work. The letter wherein the Trades Council sought an agreement with Utilities concerning subcontracting work is attached hereto as Appendix A. The agreement itself is referred to as an “Agreement Governing Subcontracting of Construction Site Work,” and the salient portions thereof are set forth as Appendix B. Utilities declined to sign the agreement tendered it by the Trades Council, and the latter, on April 22 and 23, 1976, true to its promise, picketed Utilities at the Research and Development Center and distributed handbills to the public in support of its effort to obtain Utilities’ signature on the aforementioned agreement. As a result of this picket line at the Utilities job site, i. e., the Research and Development Center, about 450 union craftsmen employed by Decker at the nearby World Headquarter’s building construction site refused to work and brought construction at that particular job site to a complete halt. It was in this general setting that Utilities and Decker brought the present action against the Trades Council. Jurisdiction was based on 15 U.S.C. §§ 15 and 26. It was alleged in the complaint that the proposed agreement under its “literal wording” represents an attempt on the part of the Trades Council to engage in a combination or conspiracy which is illegal under the Sherman Act. 15 U.S.C. §§ 1 and 2. Plaintiffs asked for treble damages. In addition to seeking monetary damages the plaintiffs also asked for a temporary restraining order enjoining the Trades Council from further picketing of Utilities and a preliminary and permanent injunction enjoining such continued picketing. When the request for a temporary restraining order came on for hearing the trial judge heard the colloquy of counsel, but took no evidence, as he was of the firm view that under the Norris-LaGuardia Act he was without jurisdiction to enjoin the Council’s picketing. On this basis, then, he denied the request for a temporary restraining order. Being of the view that he had no jurisdiction to enjoin, the trial judge similarly denied plaintiffs’ request for a preliminary injunction hearing. From these rulings the plaintiffs appeal and seek expedited review under 29 U.S.C. § 110. On oral argument we were advised that the pickets had been withdrawn and hence there was not at that moment an emergency situation, as there would have been if the picketing were continuing. However, the appeal was being pursued because of the possibility, if not indeed a likelihood, that the picket line might at any moment be re-established. We have not been advised that the picket line has been re-established pending disposition on appeal. As indicated, then, the basis for the trial court’s denial of the plaintiffs’ request for a preliminary Injunction was that it lacked jurisdiction under the Norris-LaGuardia Act to enjoin the Council’s picketing. We conclude that the trial court was correct in so holding. The trial court expressed doubt that the proposed agreement offended the antitrust provisions of the Sherman Act, but made no express holding on that particular matter. The pertinent parts of the Norris-LaGuardia Act provide as follows: (1) No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute except in strict conformity with the several provisions of the Act (29 U.S.C. § 101); (2) No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons from giving publicity to the facts involved in the labor dispute by advertising, speaking, patrolling or by any other method not involving fraud or violence (29 U.S.C. § 104); and (3) No court of the United States shall have jurisdiction to issue any temporary or permanent injunction in any case arising out of a labor dispute, except after hearing and after a finding of fact by the court that unlawful acts have been threatened and will be committed unless restrained (29 U.S.C. § 107). Utilities initially argues that there is no “labor dispute” between it and the Trades Council, and therefore the Council is not entitled to the immunity granted by the Act. In arguing that there is no existing labor dispute between the parties, Utilities seizes on paragraph 8 in the proposed agreement. We do not read paragraph 8 as being an admission by the Trades Council that there is no labor dispute between it and Utilities. Though by that paragraph the Council did indeed disavow that it was acting as a bargaining agent for Utilities’ employees or that it sought to establish terms of employment, other than the payment of the prevailing rate of wages, such is not the equivalent of a concession that the Council does not have a labor dispute with Utilities. Paragraph 8 is just what it purports to state, and nothing more. Utilities attempts to read too much into the language contained in paragraph 8. The term “labor dispute” is defined at 29 U.S.C. § 113. Without setting forth that statute verbatim, we conclude that this is a case growing out of a labor dispute by reason of each of the following, any one of which is sufficient to bring the instant controversy under the Norris-LaGuardia Act: (1) Each of the parties in this case is engaged in the construction industry, or has a direct or indirect interest therein (29 U.S.C. § 113(a)); (2) each of the plaintiffs is an employer and the Union is an association of employees (29 U.S.C. § 113(a)); and (3) there is a controversy concerning a condition of employment of workers employed by subcontractors of Utilities, although the parties to this case do not “stand in the proximate relation of employer and employee” (29 U.S.C. § 113(c)). In determining whether there is a labor dispute in the instant case, New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012 (1938) has particular applicability. There members of a black mutual improvement association picketed a grocery store that discriminated against blacks in its employment practices. The Supreme Court held that there was a labor dispute and that the members of the association were interested persons in that dispute to the end that under the NorrisLaGuardia Act the district court was without jurisdiction to enjoin the picketing. In line with New Negro Alliance, see Marine Cooks & Stewards v. Panama Steamship Co., 362 U.S. 365, 80 S.Ct. 779, 4 L.Ed.2d 797 (1960). In Marine Cooks a union of American seamen picketed a foreign ship operated entirely by a foreign crew while temporarily in an American port to protest, among other things, the loss of livelihood to American seamen “to foreign flagships with substandard wages or substandard conditions.” Such was held to be a “labor dispute” within the meaning of the Norris-LaGuardia Act, and accordingly, the district court lacked jurisdiction to enjoin such peaceful picketing. As indicated above, it is to us evident that the instant controversy as described in the complaint itself does grow out of a labor dispute under the statutory definition of that term as set forth in 29 U.S.C. § 113. The Trades Council has an obvious and legitimate interest of its own in seeing that employees of subcontractors, even though nonunion, are nonetheless paid the prevailing rate of wage. Subcontractors paying substandard wages would tend to have an edge in any competitive bidding. Understandably, then, the Council sought to have contractors enter into an agreement whereby their subcontractors would be required to pay their employees prevailing wages. The contention by Utilities that the immunities of the Norris-LaGuardia Act do not apply because there is no labor dispute is without merit. There being, then, a labor dispute between Utilities and the Trades Council, it would appear that under 29 U.S.C. § 104 the district court had no power to issue an injunction enjoining the Trades Council from continued picketing which admittedly did not involve fraud or violence. See Taxi-Cab Drivers Local 889 v. Yellow Cab Operating Co., 123 F.2d 262 (10th Cir. 1941) where it was held that if a labor dispute exists, no injunction could issue enjoining the publicizing of the existence of such dispute, or the facts thereof, in the absence of fraud or violence. Notwithstanding that under the prohibition contained in 29 U.S.C. § 104, it would appear that the district court was without jurisdiction to enjoin defendant’s peaceful picketing, Utilities argues that the district court was nonetheless vested with jurisdiction to enjoin under 29 U.S.C. § 107. As mentioned above, 29 U.S.C. § 107 provides that if certain procedural requirements are met, a court may issue an injunction where “unlawful acts havé been threatened and will be committed unless restrained.” Utilities argues that the proposed agreement would be in violation of the Sherman Act, and hence unlawful. Therefore, according to Utilities, the district court, under the Act itself, had jurisdiction to enjoin the threatened unlawful act. On the other hand, the Trades Council contends that under the facts as pleaded in the complaint, § 107 does not vest the district court with jurisdiction to issue an injunction. We agree with the Trades Council. In Milk Wagon Drivers’ Local 753 v. Lake Valley Farm Products, Inc., 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63 (1940) the Supreme Court held that federal courts do not have jurisdiction to grant injunctions in cases growing out of labor disputes merely because alleged violations of the Sherman Act are involved. In Milk Wagon the defendant Union was charged with conducting a secondary boycott in violation of the Sherman Act. In Lee Way Motor Freight Lines, Inc., 126 F.2d 931 (10th Cir. 1942) the Tenth Circuit held that the Motor Carrier Act, a non-labor act as is the Sherman Act, did not operate to enlarge, beyond the limits of the Norris-LaGuardia Act, the jurisdiction of a federal court to issue a restraining order or injunction in a case involving a labor dispute. We are aware that in Allen Bradley Co. v. Local 3, International Bhd. of Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945), the Supreme Court held that an injunction could issue where certain labor unions combined with employers and manufacturers of electrical goods to restrain competition and to monopolize the marketing of such goods in interstate commerce. The Court recognized that the problem before it in Allen Bradley was a “very narrow one” when it phrased the question to be resolved as follows: “[D]o labor unions violate the Sherman Act when, in order to further their own interests as wage earners, they aid and abet business men to do the precise things which the Act prohibits?” Allen Bradley did not purport to overrule Milk Wagon and in fact made no mention of Milk Wagon. To us Allen Bradley would appear to be simply a narrow exception to the general rule as announced in Milk Wagon. And in our best judgment the instant case is governed by the general rule, and not the exception. Subsequent to Allen Bradley the Supreme Court has given evidence of continued support to the rule of Milk Wagon. In Order of R. R. Telegraphers v. Chicago & N. W. Ry., 362 U.S. 330, 80 S.Ct. 761, 4 L.Ed.2d 774 (1960), in a footnote at page 339, 80 S.Ct. at page 766, the Court declared as follows: Of course, a holding here that mere unlawfulness under any law is enough to remove the strictures of the Norris-LaGuardia Act would require a modification or abandonment of our statement that “For us to hold, in the face of this legislation [the Clayton and Norris-LaGuardia Acts], that the federal courts have jurisdiction to grant injunctions in cases growing out of labor disputes, merely because alleged violations of the Sherman Act are involved, would run counter to the plain mandate of the [Norris-LaGuardia] Act and would reverse the declared purpose of Congress.” Milk Wagon Drivers’ Union v. Lake Valley Farm Products, Inc., 311 U.S. 91, 103, 61 S.Ct. 122, 128, 85 L.Ed. 63. See also Lee Way Motor Freight v. Keystone Freight Lines, 10 Cir., 126 F.2d 931, 934. In accord with jR. R. Telegraphers, see Brotherhood of R. R. Trainmen v. Chicago River & Ind. R. R., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). The recent case of Connell Construction Co. v. Plumbers & Steamfitters Local 100, 421 U.S. 616, 95 S.Ct. 1830, 44 L.Ed.2d 418 (1975) has facts somewhat similar to those in the instant case, but is not helpful in disposing of the present controversy for the reason that the Supreme Court did not reach the issue as to whether an injunction would lie. In Connell the Court, by way of a declaratory judgment, held that a union was subject to the antitrust laws when it attempted to obtain an agreement from certain contractors that in subcontracting they would only deal with firms that were parties to the union’s current collective bargaining agreement. The Court did not hold that such an agreement in fact violated the antitrust laws, only that the union was subject to the antitrust laws, and by footnote went on to state that under the circumstances there was “no occasion for us to consider whether the Norris-LaGuardia Act forbids such an injunction where the specific agreement sought by the union is illegal 11 Counsel for Utilities agrees that the Supreme Court in Connell “left open” the precise question now before us, but asks us to exercise a degree of prescience and hold that in the instant case the Supreme Court would hold that the trial court had jurisdiction to issue an injunction notwithstanding the Norris-LaGuardia Act. We decline to forecast or anticipate that the Supreme Court would retreat from Milk Wagon and hold that the trial court in the instant case had the power to issue an injunction banning peaceful picketing. Judgment affirmed. APPENDIX A Re: KEN-CARYL RANCH Gentlemen: We are presently engaged in a program to eliminate substandard wages in the construction industry in this area. To assist in accomplishing this, we are requesting builders, general contractors, and project managers to sub-contract jobsite work only to contractors who agree to pay prevailing rates of wages to their employees. A proposed draft of such agreement is enclosed for your consideration. You will note that it applies only to future work for which no sub-contract has been executed, and does not cover any work performed by employees who have a collective bargaining representative. We intend to acquaint the public, by means of picketing and other forms of communication, with the names of builders, general contractors and project managers who do not enter into our sub-contracting agreement for prevailing wages. In the event that your company is the subject of such picketing, it will be conducted at your general offices and other places in which you may be engaged in business. The picketing will be directed to the public, and not to your contractors, suppliers or employees. Its sole purpose will be to publicize the fact that you are not a party to our prevailing wage sub-contracting agreement. We wish to emphasize that we are not requesting or seeking, and do not desire, you to cease or refrain from doing business with any person, firm or corporation. Nor do we claim to represent, or seek to organize, any of your employees or employees of any subcontractor, or to bargain for them. If you have any comment or question concerning this matter, please communicate the same by letter, which will be referred to our Executive Board for appropriate consideration and action.' Neither the undersigned, nor any other person, has authority to discuss this matter in behalf of the Council. Very truly yours, COLORADO BUILDING AND CONSTRUCTION TRADES COUNCIL APPENDIX B AGREEMENT GOVERNING SUB-CONTRACTING OF CONSTRUCTION SITE WORK THIS AGREEMENT, entered into by and between Utilities Services Engineering, Inc., hereinafter called “Contractor”, and the COLORADO BUILDING AND CONSTRUCTION TRADES COUNCIL, hereinafter called “Council”, WITNESSETH: WHEREAS, the parties recognize that efficient and economical building construction requires the maintenance of reasonable standards of compensation for construction workers, and WHEREAS, it is the purpose and intention of the contracting parties to encourage employers in the construction industry to provide fair rates of compensation for their employees, and WHEREAS, the parties to this Agreement recognize and intend to protect the right of each party to freely engage in business with any person, corporation or association of its choice without hindrance, impediment or restraint, NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contained herein, it is mutually agreed by and between the parties as follows: 1. This contract shall govern, and be limited to, labor performed at the site of construction, alteration, painting, or repair of building, structure, or other work of the Contractor by sub-contractors, and shall be limited to work which is not customarily performed by employees of the Contractor. This Agreement shall not apply to work on any project for the performance of which the Contractor has entered into a sub-contract on or before the date of execution of this Agreement. Nor shall this Agreement apply to any work performed by any employee or employees in a certified or recognized collective bargaining unit, or by any employee or employees who have a representative for collective bargaining. * * * * * * 3. It shall be the obligation of the Contractor to include in every sub-contract for work governed by this Agreement a provision requiring the payment of prevailing rates of wages for such work. In the event any sub-contractor shall fail to pay its employees the prevailing rates of wages for work within the scope of this Agreement, the Contractor shall make whole the employees of sub-contractor for all losses and damages which they sustain by reason of the sub-contractor’s default. 4. The Contractor further agrees that it will not permit any sub-contractor, or the employee of any sub-contractor, to perform any work within the scope of this Agreement, unless the sub-contractor has entered into a written agreement with the Contractor agreeing to pay its employees the prevailing wage rates for all work governed by this Agreement. ♦ * * * * $ 8. It is understood and agreed by the parties that the Council is not the collective bargaining representative of any employee, and therefore, nothing herein shall be construed to recognize the Council as the collective bargaining representative of any employee or employees, or to supersede any collective bargaining contract presently, or hereafter, in effect, or to derogate in any way from the authority of any collective bargaining representative of employees of the Contractor or the sub-contractor. Nor shall any provision in this Agreement be construed to establish rates of compensation, conditions of work, or terms of employment for any employees of the Contractor, or of a sub-contractor. 9. As used herein the term “prevailing rate of wage” means that rate of wages paid in the area in which the work is to be performed to the majority of workers employed in that classification in construction in the area similar to the proposed undertaking. In the event that there is not a majority of workers paid at the same wage rate, then the wage rate paid to the greater number of workers shall be deemed to be the prevailing wage rate. * * * * # * . The trial court retained jurisdiction of the plaintiffs’ claim for treble damages. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_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. COLUMBIA BROADCASTING SYSTEM, INC., Defendant, Appellant, v. Victor DeCOSTA, Plaintiff, Appellee. CAPITAL CITIES BROADCASTING CORPORATION v. Victor DeCOSTA. CBS FILMS INC. v. Victor DeCOSTA. Nos. 6769-6771. United States Court of Appeals First Circuit. May 11, 1967. Knight Edwards, Providence, R. I., with whom Ronald R. Lagueux, Providence, R. I., Carleton G. Eldridge, Jr., Eugene L. Girden, New York City, Edwards & Angelí, Providence, R. I., and Coudert Brothers, New York City, were on brief, for appellants. Leonard Decof, Providence, R. I., with whom Alan T. Dworkin and Aisenberg, Decof & Dworkin, Providence, R. I., were on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. COFFIN, Circuit Judge. This is an appeal by defendants from jury verdicts in the total amount of $150,000 awarded plaintiff on his claim that he created, and the defendants misappropriated, the character of Paladin, the protagonist of the CBS television series entitled “Have Gun Will Travel”. The story of this case — more bizarre than most television serial installments— is one of “coincidence” run riot. The plaintiff, of Portuguese parents, is a Rhode Island mechanic whose formal education ceased after the fourth grade. During the Depression, having tired of factory work, he hopped a freight for the West, lived in hobo jungles, and eventually became a range hand on a Texas ranch. After two years of riding and roping he returned to Rhode Island to work as a mechanic and later received training as a motor machinist in the Coast Guard. But he retained his passion for all things western. In 1947 he began to participate in rodeos, horse shows, horse auctions, and parades. From the beginning plaintiff indulged a penchant for costume. He was already equipped with a moustache. He soon settled on a black shirt, black pants, and a flat-crowned black hat. He had acquired a St. Mary’s medal at a parade and affixed this to his hat. He adopted the name Paladin after an onlooker of Italian descent had hurled an epithet at him containing the word “Paladino”. On looking up the word Paladin in a dictionary he found it meant “champion of Knights” and was content that people began so to call him. One day when he had donned his costume in preparation for a horse show, and was about to mount his horse, one of a group waiting for him shouted “Have Gun Will Travel”, a cry immediately picked up by the children present. The finishing touches were a chess knight, bought for fifteen cents at an auction, which plaintiff thought was a good symbol, and which he used on a business card along with the words “Have”, “Gun”, “Will”, “Travel”, and “Wire Paladin, N. Court St., Cranston, R. I.”, hand-printed with separate rubber stamps; a silver copy of the chess piece on his holster; and an antique derringer strapped under his arm. So accoutered, he would appear in parades, the openings and finales of rodeos, auctions, horse shows, and a pony ring he once operated. From time to time at rodeos he would stage a western gunfight, featuring his quick draw and the timely use of his hidden derringer. He would pass out photographs of himself and cards— printed versions soon replacing the. rubber-stamped ones. Hospitals, drug stores, barber shops, sports shops, diners —all were the repositories of his cards, some 250,000 of them. Children clamored for the cards, and clustered about him to the extent that he was likened to the Pied Piper and Gene Autry. This was perhaps one of the purest promotions ever staged, for plaintiff did not seek anything but the entertainment of others. He sold no product, services, or institution, charged no fees, and exploited only himself. Ten years after he had begun to live his avocational role of Paladin, he and his friends saw the first CBS television production of “Have Gun Will Travel”, starring moustachioed Richard Boone, who played the part of an elegant knight errant of the Old West, always on the side of Good — for a fee. The television Paladin also wore a black costume, a flat-crowned black hat bearing an oval silver decoration, and a silver chess knight on his holster, and announced himself with a card featuring a chess piece virtually — if not absolutely — identical with the plaintiff’s and the words “Have Gun Will Travel, Wire Paladin, San Francisco”. The series was notably successful; it appeared in 225 first-run episodes in the United States, was licensed in foreign countries, and by the time of trial had grossed in excess of fourteen million dollars. The writers and network executives responsible for the series testified in detail that the television Paladin was a spontaneous creation, developed in total ignorance of the attributes of his Rhode Island predecessor. The writers, Herb Meadow and Sam Rolfe, testified that the germ of the idea was the title, “Have Gun Will Travel”, which Meadow had evolved from mulling over a familiar theatrical advertising phrase, “Have tux, will travel”. The character was originally conceived as a denizen of contemporary New York, but was changed to a western hero because the network hoped to cast Randolph Scott in the role. The name “Paladin” resulted from a thesaurus search for words meaning “knight” or “hero” or “champion”. The chess piece symbol was inspired by Meadow’s observation, while teaching his son the game, that the knight’s movements were uniquely erratic and unpredictable. In the pilot script for the series, Paladin used a hidden derringer because it was a convenient way to extricate him from the obligatory dangerous situation. The show’s original producer, Julian Claman, testified that after Randolph Scott and other “fairly well known” actors were found to be unavailable he selected Richard Boone to be tested for the role of Paladin. Boone appeared for the test with a moustache, for reasons unknown, and was outfitted in a black suit because it was the only available costume that fitted. The hat, bearing a silver “conche”, was selected by Claman because it looked appropriate. The card, which had been described in Meadow and Rolfe’s original prospectus, was realized by the CBS art department from a rough sketch by Claman. The “shocking similarity” to DeCosta’s cards was pure coincidence. Boone’s test was successful, and Claman, reluctant to change any element of a winning combination, decided to keep card, costume, and moustache intact for the pilot film. He also decided to add the silver chess knight to Paladin’s holster because it produced a distinct article that would be marketable if the series succeeded. Meadow, Rolfe, Claman, and the other witnesses for the defendants all testified that they had never seen DeCosta or any of his cards. The jury obviously disbelieved at least this much of their testimony, and we think it clear that they were amply justified. Thus, the plaintiff has had the satisfaction of proving the defendants pirates. Hut we are drawn to conclude that that proof alone is not enough to entitle him to a share of the plunder. Our Paladin is not the first creator to see the fruits of his creation harvested by another, without effective remedy; and although his case is undeniably hard, to affirm the judgments below would, we think, allow a hard case to make some intolerably bad law. In the first place, it is by no means clear that such state law of intellectual property as we have found supports relief on these facts. Several cases have been cited around the general proposition that it is an actionable wrong to appropriate and exploit the product of another’s creative effort; but all seem to involve distinguishable wrongs of at least equal or even superior significance. Most rest on the tort of “passing off”: appropriation not of the creation but of the value attached to it by public association (the so-called “secondary meaning”), by misleading the public into thinking that the defendant’s offering is the product of the plaintiff’s established skill. E. g., Lone Ranger, Inc. v. Cox, 4 Cir., 1942, 124 F.2d 650; Chaplin V. Amador, 1928, 93 Cal.App. 358, 269 P. 544. Others add an element of injury to reputation caused by a poor imitation. E. g., Lahr v. Adell Chem. Co., 1 Cir., 1962, 300 F.2d 256. And at least one combined both of these with an element of injury to a valuable contract to assert “the broader principle that property rights of commercial value are to be and will be protected from any form of unfair invasion or infringement and from any form of commercial immorality * Metropolitan Opera Ass’n v. Wagner-Nichols Recorder Corp., Sup.Ct.1950, 199 Misc. 786, 793, 101 N.Y.S.2d 483, 492. Plaintiff argues that he has established “secondary meaning” through testimony of some witnesses that they thought he was the Paladin on television and evidence that most people knew him only as Paladin, not as Victor DeCosta. Whether or not this assertion is true, it is here irrelevant, for the issue was not submitted to the jury. The complaint alleged three causes of action: misappropriation, trade and/or service mark infringement, and unfair competition by “passing off” the television Paladin as the plaintiff. Only the first was tried, the court reserving judgment on defendant’s motions to dismiss the other two. The jury was instructed that the plaintiff would be entitled to the verdict if he established: “First. That he conceived and created said idea and character of ‘Paladin, Have Gun Will Travel’; and that said idea and character was novel, original, and unique; and that he did not at any time abandon said idea and character by a publication thereof. “Second. That the defendants * * * did copy said idea and character without the permission of the plaintiff and used them in the television series, ‘Have Gun Will Travel.’ And “Third. That the plaintiff sustained damages as a result of such copying and use of said idea and character. * * » Thus, the judgment can only be supported on a rule of law that would allow recovery upon proof of creation by the plaintiff and copying by the defendants, and nothing else. We do not find such a rule in the cases cited above. Moreover, the leading case affording a remedy for mere copying, International News Serv. v. Associated Press, 1918, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211, is no longer authoritative for a least two reasons: it was decided as a matter of general federal law before the decision in Erie R. R. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; and, as it prohibited the copying of published written matter that had not been copyrighted (indeed, as news it could not be copyrighted, 248 U.S. at 234, 39 S.Ct. 68, 63 L.Ed. 211), it has clearly been overruled by the Supreme Court’s recent decisions in Sears, Roebuck & Co. v. Stiffel Co., 1964, 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661, and Compco Corp. v. Day-Brite Lighting, Inc., 1964, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669. While this normally would not prevent the state court from adopting the reasoning of INS in fashioning a rule of state law, we think it important to consider the scope of state power in this area in view of Sears and Compco. It is true that Sears and Compco both deal with copying of articles covered by invalid design patents. But the opinions refer throughout to both copyright, and patent; and in Compco the Court took pains to articulate the broad scope of its decisions: “Today we have held * * that when an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” 376 U.S. at 237, 84 S.Ct. at 782. More fully, that policy is to encourage intellectual creation by offering the creator a monopoly in return for the disclosure and eventual surrender of his creation to the public. Does the language in Compco, “whatever the federal patent and copyright laws leave in the public domain”, refer to creations that Congress has deliberately chosen not to protect or more broadly to those it has simply not protected, whether by choice or by chance? In the case of patents the two questions are coterminous, for Congress has deliberately chosen not to protect inventions lacking the element of originality, and an invention is thus either patentable or unprotectible. In the case of “writings” there is no such universal test of qualification. But Congress has established a procedural scheme of protection by notice and registration. The necessary implication of this approach, we conclude, is that, absent compliance with the scheme, the federal policy favoring free dissemination of intellectual creations prevails. Thus, if a “writing” is within the scope of the constitutional clause, and Congress has not protected it, whether deliberately or by unexplained omission, it can be freely copied. See Cheney Bros. v. Doris Silk Corp., 2 Cir., 1929, 35 F.2d 279. The compelling reasons for this rule are well stated in Judge Learned Hand’s: prophetic dissent in Capitol Records, Inc. v. Mercury Records Corp., 2 Cir., 1955, 221 F.2d 657, 664-667, where he referred to (1) the anomaly of allowing a creator to acquire a perpetual monopoly of his work under state law when he cannot obtain the limited right of exploitation under federal law, and (2) the impossibility of affording effective protection against copying except by a uniform, national law. ‘ See also RCA Mfg. Co. v. Whiteman, 2 Cir., 1940, 114 F.2d 86, 89-90. To this plaintiff gives two answers. He argues that a character is not copyrightable — by which we must understand that it is not within the scope of Congress’s power under the copyright clause —and that in any event a creation in the form of a public performance is protective as an unpublished work under 17 U.S.C. § 2. For the first proposition the authority cited is Warner Bros. Pictures, Inc. v. Columbia Broadcasting Sys., 9 Cir., 1954, 216 F.2d 945, which held that the assignee of the copyright of the novel The Maltese Falcon could not prevent the author from using the character Sam Spade in a sequel. But that ease is inapposite, because it held only (a) that the contract of assignment did not convey the exclusive right to use the characters in the novel, and (b) that the sequel, The Kandy Tooth, was not so similar as to infringe the copyright. That is far from saying that characters are inherently uncopyrightable. A more substantial argument for this first proposition is that the plaintiff’s creation is not a “writing” in the sense used in the copyright clause (or, what is the same thing, that it is not an “article” in the sense used in Sears and Compco). There is no question that the term is to be interpreted more broadly than its common meaning would indicate. See, e. g., Mazer v. Stein, 1954, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (statuette used as a lamp base). But it has been argued that it should be limited to mean some identifiable, durable, material form. Nimmer, Copyright Publication, 56 Colum.L.Rev. 185, 196 n. 98 (1956). And it is argued here that the plaintiff’s creation, being a personal characterization, was not reduced and could not be reduced to such a form. To this argument there are several answers. First, while more precise limitations on “writings” might be convenient in connection with a statutory scheme of registration and notice, we see no reason why Congress’s power is so limited. Second, we cannot say that it would be impracticable to incorporate into the copyright system a procedure for registering “characters” by filing pictorial and narrative description in an identifiable, durable, and material form. Finally, however, there comes a point where what is created is so slight a thing as not to warrant protection by any law. All human beings — and a good part of the animal kingdom — create characters every day of their lives. Individuals often go beyond the realm of unconscious creation and devise characterizations for their own and others’ amusement. Many a starred performer has so begun, and continued to grow on the borrowings from others. At some point his innate talent and eclectic poaching may enable him to attract a following, and ultimately to secure the law’s protection against imitators. At what point short of this there should be additional protection we do not say. But in view of the federal policy of encouraging intellectual creation by granting a limited monopoly at best, we think it sensible to say that the constitutional clause extends to any concrete, describable manifestation of intellectual creation; and to the extent that a creation may be ineffable, we think it ineligible for protection against copying simpliciter under either state or federal law. For the second proposition, that the plaintiff’s creation is an unpublished work protected under 17 U.S.C. § 2, the leading authority is Ferris v. Frohman, 1912, 223 U.S. 424, 32 S.Ct. 263, 56 L.Ed. 492, which held that the public performance of a play did not constitute publication in the sense of an abandonment to public use. But in that case the Court specifically noted that the play involved had not been “printed and published”; that is, no copies of the script had been distributed publicly. Here, plaintiff’s “performance” consisted of two components: appearing in public and passing out cards and photographs. No other “action” was involved, except an occasional “quick draw” demonstration at a rodeo. So far as his costume and menacing appearance were concerned, it was fully conveyed on the cards bearing his photograph — which also contained the chess piece, the slogan, and the name “Paladin”. The cards were passed out in great quantities over the years to all who would have them. So far as any action accompanying his personal appearance is concerned, whether it be simply riding a horse, or staging a quick-draw gun fight, these are hallowed shelf items in the tradition of the early West. In any event, the theme and plots of defendants’ television series could not be said to have derived from anything created by plaintiff which was not revealed by his cards. The cards were unquestionably “writings” within the meaning of the copyright clause, and arguably were copyrightable under the statute. See 17 U.S.C. §§ 1, 5(g), 5(k); Burrow-Giles Lith. Co. v. Sarony, 1883, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349. The consequence is that the plaintiff’s character-creation was published, even under the doctrine of Ferris, and that this case falls squarely under the rule of Sears and Com/pco. Not having copyrighted the cards, the plaintiff cannot preclude others from copying them. We accordingly reverse. . The three defendants are Columbia Broadcasting System, Inc., producer of the television series at issue, CBS Films, Inc., a wholly owned subsidiary of the System responsible for licensing the series; and Capital Cities Broadcasting Corporation, owner of several broadcasting stations showing the series in several states. For convenience we shall refer to them simply as CBS or defendants. . Other names he had been called were Kid Hollywood, Fidel, Gabby Hayes, the Wild Cowboy from the Southwest, and Paladino. . Since this action was tried in the District of Rhode Island, the governing law must be the substantive law of Rhode Island or of the state indicated by Rhode Island’s choice-of-law rules. But no authority from Rhode Island has been cited or found. Thus, the cases from other jurisdietions are at best persuasive in estimating what the law of Rhode Island might be; and the difficulty of applying one state’s rule to a “tort” that, like this, affects the interests of many states, see Capitol Records, Inc. v. Mercury Records Corp., 2 Cir., 1955, 221 F.2d 657, 667 (L. Hand, J., dissenting), might well leave the issue in doubt even if another jurisdiction provided a case directly in point, . The plaintiff quotes the Lone Ranger case as involving “the element of fraudulent attempt of someone to 'reap where he has not sown’ and to appropriate to himself ‘the harvest of those who have sown’.” 124 F.2d at 653. But the opinion makes it clear that the “harvest” is the goodwill generated by long establishment of the Lone Ranger in the public eye, and the element of fraud is quite as important as the element of appropriation. . See also Cheney Bros. v. Doris Silk Corp., 2 Cir., 1929, 35 F.2d 279, 280 (L. Hand, J.): “ * * * there are cases where the occasion is at once the justification for, and the limit of, what is decided. This [/NS] appears to us such an instance * * . U.S.Const. art. I, § 8, cl. 8: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Eight to their respective Writings and Discoveries. See also Graham v. John Deere Co., 1966, 383 U.S. 1, 5-10, 86 S.Ct. 684, 15 L.Ed.2d 545. . This case presents the problem very well. Counsels’ failure to address it in their briefs is a tribute to its perplexity. Here a Ehode Island plaintiff performed in Ehode Island, Connecticut, Maine, Massachusetts, and New York, and once gave a batch of his cards to a truckdriver heading west. Can Ehode Island law effectively prohibit copying from a performance in New York or from a card carried to California by a person who-may have received it in Kansas? Would' Ehode Island resolve the choice of law-question by inquiring whether California, the site of the television series, would prohibit the copying? If so, should California law apply to govern the rights of people in, say, Arkansas to view the intellectual “property” of a Ehode Island citizen, stolen perhaps in Connecticut, perhaps in Kansas, certainly in parts unknown? . “Nothing in this title shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.” . Cf. Nichols v. Universal Pictures Corp., 2 Cir., 1930, 45 F.2d 119, 121: “ * * * If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s ‘ideas’ in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” . We note, furthermore, that the Court relied on such eases as Tompkins v. Hal-leek, 1882, 133 Mass. 32, for the proposition that at common law performance of a play was not an abandonment of it to public use. In Tomplcins the Supreme Judicial Court of Massachusetts abrogated the theory that a play might properly be copied from memory after witnessing a performance, adopting instead the theory that even a reproduction from memory violated the implicit license of the spectator’s ticket of admission. Were it necessary, we might question whether the same result would apply to a free open-air performance where the audience is limited only by conditions of visibility, and no license might be implied. 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_usc2	15	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 15. 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. BROADWAY DELIVERY CORP., et al., Plaintiffs-Appellants, v. UNITED PARCEL SERVICE OF AMERICA, INC., et al., Defendants-Appellees. No. 534, Docket 80-7727. United States Court of Appeals, Second Circuit. Argued March 16, 1981. Decided June 3, 1981. Joseph M. Alioto, San Francisco, Cal. (Lawrence G. Papale, Alioto & Alioto, San Francisco, Cal., and Elliot L. Schaeffer, Schaeffer, Schaeffer & Sands, New York City, on the brief), for appellants. Irving R. Segal, Philadelphia, Pa. (Dennis R. Suplee, Arlene Fickler, Diana S. Donaldson, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Proskauer, Rose, Goetz & Mendelsohn, New York City, on the brief), for appellees. Before LUMBARD and NEWMAN, Circuit Judges, and TENNEY, District Judge. The Honorable Charles H. Tenney of the United States District Court for the Southern District of New York, sitting by designation. NEWMAN, Circuit Judge: This is an appeal from a judgment of the District Court for the Southern District of New York (Kevin T. Duffy, Judge) dismissing, after a jury trial, a complaint for treble damages under § 4 of the Clayton Act, 15 U.S.C. § 15 (1976). The suit was brought by various firms that transport packages in the New York metropolitan area against United Parcel Service of America, Inc. (UPSA) and its wholly owned operating subsidiary in the Northeast, United Parcel Service, Inc. (New York) (UPSNY). The plaintiffs charged that from 1960 to 1975 the defendants conspired to monopolize, and monopolized or attempted to monopolize the pickup and delivery of small packages sent by wholesalers in the New York garment district, in violation of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976). The § 1 claim was disposed of by summary judgment on the basis of the defendants’ unopposed showing that during the relevant period they conducted their affairs and held themselves out as a single firm, incapable of conspiring with itself in violation of § 1. The § 2 claims were tried to a jury, which returned a verdict for the defendants. On appeal, the plaintiffs-appellants challenge primarily the District Court’s rejection of their § 1 claim, and the Court’s jury instruction that they could not prevail on their § 2 monopolization claim unless they proved that during the relevant period the defendants controlled at least 50% of the relevant market. We conclude that the plaintiffs abandoned their § 1 claim and that the challenged jury instruction was erroneous but harmless error in light of the plaintiffs’ failure to present a prima facie case of a § 2 monopolization violation. Our disposition of these issues moots the other claims of error, and we therefore affirm. FACTUAL BACKGROUND The plaintiffs transport goods by motor vehicle in and around what is known in the trade as the New York commercial zone, an area encompassing New York City and parts of northern New Jersey, which is exempt from regulation by the Interstate Commerce Commission and the New York State Department of Transportation. Most of the plaintiffs limit their activities to carrying merchandise from garment manufacturers in the commercial zone to retail stores in the commercial zone or to freight consolidators and post offices for re-delivery to retail stores throughout the United States. The plaintiffs who restrict their activities to the unregulated commercial zone are not required to have ICC operating rights, and many have none. Like anyone with a truck who wishes to engage in the transportation business in this area, these plaintiffs are free to pick up and deliver, as often as they wish, as many packages of any size and weight as they are physically able to carry, at any rate that the market will bear. The defendant UPSA is a Delaware corporation owning all the stock of defendant UPSNY, a New York corporation, and non-defendant United Parcel Service, Inc. (Ohio), an Ohio corporation (UPSO). The UPS subsidiaries transport packages in interstate commerce. UPSNY operates in thirteen Northeastern states, including the New York commercial zone; UPSO operates throughout the rest of the forty-eight contiguous states. Although separately incorporated, the subsidiaries operate cooperatively under a management agreement with UPSA to provide a unified transportation service for shippers throughout the country. During the relevant period, the management agreement provided that UPSA would supply the subsidiaries with a full range of management services in exchange for 4.5% of their gross receipts plus 50% of their net profits. The agreement further provided that UPSA would indemnify each subsidiary against operating losses it sustained in any year in which it followed UPSA’s advice and recommendations. Unlike the plaintiffs who restrict their activities to the commercial zone, the UPS subsidiaries operate under the jurisdiction of the ICC. During the relevant period, their ICC operating certificates prohibited them from carrying a package weighing more than 50 pounds or measuring more than 108 inches in length and girth combined. The certificates also prohibited them from transporting from a single shipper to a single consignee in any one day packages having an aggregate weight of more than 100 pounds. The rates charged by the UPS subsidiaries, contained in tariffs filed with the ICC, are modeled after and closely parallel the rates charged by the United States Postal Service, the UPS organization’s principal competitor. The UPS rates depend on the weight of the package and the distance to be traveled and are uniform for shippers throughout the country. The record on appeal sheds little additional light on the nature of the market in which the parties conduct their operations. The plaintiffs contend that they established a relevant service market consisting of the pickup and delivery of wholesale packages weighing less than 50 pounds, and a relevant geographic market consisting of one of the basic administrative and operating units of the UPS organization, namely, the “Metro New York District,” an area consisting in large part of the New York commercial zone. The defendants contend that the plaintiffs’ definition of the relevant service market is too narrow in that it excludes some of the plaintiffs themselves, for example, a freight consolidator, who neither picks up nor delivers any packages. The defendants also challenge the plaintiffs’ definition of the relevant geographic market, noting that the UPS companies operated during the period in question on a nationwide basis, that the Postal Service also operated nationwide, that much of the merchandise carried locally by the plaintiffs was eventually delivered to points throughout the United States, and that some of the plaintiffs carried merchandise to and from points outside the Metro New York District. On our view of the case, it is unnecessary to resolve the question whether the evidence was sufficient to establish the service and geographic markets urged by the plaintiffs. For purposes of this appeal, we will assume that the relevant service and geographic markets are the ones claimed by the plaintiffs. How the parties fared in the relevant market is an issue of some uncertainty. The plaintiffs alleged in their complaint that UPSNY’s share of the relevant market steadily increased throughout the relevant period due to, among other exclusionary practices, below-cost pricing subsidized by UPSA, and that UPSNY eventually acquired more than a 50% share of the relevant market. The plaintiffs’ evidence established that UPSNY’s traffic tripled during the relevant period and that its revenues increased sevenfold. But the plaintiffs presented no evidence of UPSNY’s market share at any time during the period in question. To support their claim that the defendants had engaged in predatory pricing, the plaintiffs relied on summaries of UPSNY’s operations prepared by the defendants for internal purposes, and on the record of the payments the defendants made to each other under their management agreement. The plaintiffs interpreted the operating summaries as proof that UPSNY had consistently operated at a loss. However, the defendants’ expert in cost accounting testified without rebuttal that the summaries were not only ill-suited for the purpose of showing the profitability of UPSNY’s operations, but that, when the figures were properly adjusted, they showed that UPSNY made substantial profits in most years. Losses occurred only in 1963, soon after UPSNY began operating in the relevant market, and in those years in which UPSNY was beset by major strikes. The record of the defendants’ payments to each other showed that during the relevant period UPSA collected from UPSNY a total of over $178 million and indemnified it against losses totaling $37.6 million. DISCUSSION A. The § 1 Claim ■ The plaintiffs’ § 1 claim was. directed primarily at the indemnification provision of the defendants’ management agreement. The plaintiffs contended that this provision had the purpose and effect of unreasonably restraining competition in the relevant market by enabling UPSA to use the profits earned by UPSO to subsidize predatory pricing by UPSNY. Following three years of pretrial proceedings, the defendants moved for partial summary judgment on the § 1 claim, contending on the basis of affidavits and deposition testimony that the agreement among the UPS entities was outside the purview of § 1 because they had operated at all relevant times as a single enterprise. The plaintiffs opposed the motion on the ground that the defendants had operated independently and requested an opportunity to engage in further discovery to elicit proof to support their claim. The District Court ruled that the defendants’ capacity to conspire with each other in violation of § 1 was an issue of fact. Though the defendants’ factual showing was unre-butted, the Court continued the motion for sixty days to allow the plaintiffs further opportunity to oppose the motion. The Court warned the plaintiffs that unless they submitted appropriate proof within the sixty-day period, their § 1 claim would be dismissed. The plaintiffs never submitted the required proof, despite several additional extensions of time totaling more than six months, and the defendants’ motion was eventually granted. At a pretrial conference one year later, the plaintiffs’ new counsel inquired whether the Court would be willing to submit the § 1 claim to the jury in the event the plaintiffs presented evidence demonstrating that the defendants had entered into an agreement prohibited by § 1. Judge Duffy replied that, despite the order dismissing the § 1 claim (which remained subject to revision, Fed.R.Giv.P. 54(b)), he had an open mind on the matter and was willing to permit the plaintiffs to attempt to prove the elements of their § 1 claim. Nevertheless, the plaintiffs failed to press the § 1 claim before the jury, requested no jury instruction on the claim, and voiced no objection when no § 1 instruction was given. Whether the applicability of the intracorporate conspiracy doctrine is an issue of law or fact, a question that continues to divide the other circuits, we agree with the defendants that the plaintiffs abandoned their § 1 claim when they failed to pursue it at trial. The District Court’s grant of the plaintiffs’ request to litigate the claim before the jury afforded them a full opportunity to secure revision of the order granting the partial summary judgment prior to the entry of any final judgment. The plaintiffs had more than the procedural possibility of revision contemplated by Rule 54(b); they had the District Court’s explicit invitation to proceed. Their appeal from the dismissal of their claim is therefore no different from prior appeals challenging the rejection of claims and defenses that were pleaded but not properly pursued in the trial court; in such cases an appellate court will not relieve a party of the effect of its procedural default, except in the most extraordinary circumstances to prevent a miscarriage of justice. See Stanspec Corp. v. Jelco Inc., 464 F.2d 1184, 1187 (10th Cir. 1972); King v. Stevenson, 445 F.2d 565, 571 (7th Cir. 1971); Evans v. S.J. Groves & Sons Co., 315 F.2d 335, 341 (2d Cir. 1963). No such circumstances exist here. B. The § 2 Monopolization Claim In instructing the jury on the plaintiffs’ § 2 monopolization claim, the District Court explained, in traditional language, that the defendants must be shown to have willfully acquired or maintained monopoly power— the power to control prices or exclude competition — in the relevant market. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 1005, 100 L.Ed. 1264 (1956). The jury was then told to determine the defendants’ share of the relevant market in deciding whether the defendants possessed monopoly power. If the jury agreed with the plaintiffs’ market definition, the defendants’ market share was to be determined by calculating the percentage of all the small wholesale packages transported in the Metro New York District that were transported by the defendants. The plaintiffs do not challenge the instruction defining market share in terms of the percentage of packages carried, instead of the more traditional measure of the percentage of revenues received. Instead, their attack focuses on the following instruction concerning the significance of a market share below 50%: “If you find that the defendants possessed less than 50% of the relevant market, you don’t have to go any further on a monopolization claim. Possession of less than 50% of the market fails to establish monopoly power.” It is not entirely clear from the instructions how the jury was to use market share if it found that the share exceeded 50%. But there is no doubt that the jury was unequivocally told to reject the monopolization claim if the defendants’ share was found to be less than 50%. The significance of particular market shares has evoked varied comment in antitrust law. The cases have considered many different percentages, and the Courts’ observations cannot readily be compared because they were made in contexts that ranged from a fact-finder’s assessment of the evidence, e. g., United States v. United Shoe Machinery Corp., 110 F.Supp. 295 (D.Mass.1953), aff’d, 347 U.S. 521, 74 S.Ct. 699, 98 L.Ed. 910 (1954), to a legal determination of the sufficiency of a claim, e. g., Brager & Co., Inc. v. Leumi Securities Corp., 429 F.Supp. 1341 (S.D.N.Y.1977). Several decisions cast doubt on whether monopoly power can be possessed by a company enjoying less than a 50% market share. In the early case of United States v. United States Steel Corp., 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 343 (1920), the Supreme Court stated that it was “certain” that the defendant had not achieved a monopoly, reasoning that although “the power [it] attained was much greater than that possessed by any one competitor — it was not greater than that possessed by all of them.” Id. at 444, 40 S.Ct. at 297. It has frequently been observed, moreover, that the leading cases upholding monopolization claims involved defendants who controlled well over half the relevant market, with market shares ranging from 70% to 100%. See, e. g., Hiland Dairy Inc. v. Kroger Co., 402 F.2d 968, 974 n.6 (8th Cir. 1968) (collecting cases). And an occasional statement can be found labeling a 50% market share a “prerequisite for a finding of monopoly.” Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 207 n.2 (5th Cir. 1969). In most instances, however, the courts seem to be assessing only the significance of the share possessed by a particular defendant in a particular market, rather than endeavoring to extrapolate a general rule. In United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), for example, Judge Learned Hand considered Alcoa’s share under three possible market definitions and thought it “doubtful” whether a share of 60-64%, yielded by one of the definitions, would constitute a monopoly. Id. at 424. It seems unlikely that Judge Hand was doubting that any defendant with a 60-64% share of any market, regardless of its structure, could ever be found to possess monopoly power. Even if his doubts ranged beyond the case he was considering, it is significant that he expressed a doubt, not a rule of preclusion. In Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir. 1980), the case relied on by the District Court as authority for the challenged instruction, we held that a monopolization claim was properly dismissed on a motion for summary judgment despite evidence that at the beginning of the relevant period the defendant had a market share of 48.3%. But we did not affirm the defendant’s judgment simply because 48.3% was less than 50%. Instead we assessed the significance of the defendant’s share, specifically noting that the share had steadily declined to 33%. See Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 273 n.11 (2d Cir. 1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980) (noting evidential significance of decline in market share). In United States v. United Shoe Machinery Co., supra, Judge Wyzanski, as the finder of fact, found, on the basis of all the evidence, that the defendant controlled markets in which its share exceeded 50%, but did not control other markets in which its share was less than 50%. Id. at 346. Similarly, in Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29, 33 (7th Cir. 1976), the Court, in rejecting the sufficiency of a § 2 claim, noted that the defendant’s market share did not exceed 60%, but also observed that there was no evidence of the shares of other principal competitors and, in general, insufficient evidence to support a conclusion that the defendant had monopoly power. The trend of guidance from the Supreme Court and the practice of most courts endeavoring to follow that guidance has been to give only weight and not conclusiveness to market share evidence. In United States v. Columbia Steel Co., 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948), the Supreme Court recognized that exclusive focus on market share percentages can produce a distorted picture of market power because “the relative effect of percentage command of a market varies with the setting in which that factor is placed.” Id. at 528, 68 S.Ct. at 1124. The Court said that a true picture emerges only from consideration of additional market characteristics, among them, the strength of the competition, the probable development of the industry, and consumer demand. Id. at 527, 68 S.Ct. at 1124. In more recent decisions in the merger context, the Court has reaffirmed its unwillingness to base market power determinations simply on market share data, preferring to treat market share as strong, perhaps presumptive, evidence of the presence or absence of market power, subject to bolstering or rebuttal by other evidence. See, e. g., United States v. Citizens & Southern National Bank, 422 U.S. 86, 120, 95 S.Ct. 2099, 2118, 45 L.Ed.2d 41 (1975); United States v. Marine Bancorporation, 418 U.S. 602, 631, 94 S.Ct. 2856, 2874, 41 L.Ed.2d 978 (1974); United States v. General Dynamics Corp., 415 U.S. 486, 497-98, 94 S.Ct. 1186, 1193-94, 39 L.Ed.2d 530 (1974). This approach was followed recently by the Ninth Circuit when it reversed a ruling that an allegation of a market share of 65% was an insufficient, pleading of monopoly power, Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 924-25 (9th Cir. 1980), cert. denied,-U.S.-, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981), and by several trial courts which recognized, in denying motions to dismiss claims or grant summary judgment, that a particular market share is not inevitably necessary for a firm to be able to control prices or exclude competition. See Brager & Co., Inc. v. Leumi Securities Corp., supra, 429 F.Supp. at 1347 (claim alleging 60% share); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 265, 269 (W.D.Mo.1980) (no percentage allegation); Fox Chemical Co. v. Amsoil, Inc., 445 F.Supp. 1355, 1360 (D.Minn.1978) (same). See generally, 4 P. Areeda & D. Turner, Antitrust Law ¶¶ 908-15 (1978); Landes & Posner, Market Power in Antitrust Cases, 94 Harv.L.Rev. 937 (1981). We do not doubt the significance of market share evidence as an indicator of either the presence or absence of monopoly power. As the cases and commentators have cautioned, however, the true significance of market share data can be determined only after careful analysis of the particular market. Unfortunately, that type of analysis is more congenial to ■ the economist’s blackboard than to the courtroom, especially when an antitrust case is tried to a jury. Formulas can express the pertinent relationships between market power, market share, and demand and supply elasticities, e. g., Landes & Posner, supra, at 945 (equation 3), but the data required for sophisticated analysis of a particular market are not always available, and their comprehension by jurors is uncertain at best. Endeavoring to apply the legal standards of the antitrust laws in the light of modern economics requires trial judges to assess carefully whether the market power evidence creates a fair jury issue of monopoly power and, if so, to afford the jury helpful guidance in resolving the issue. In ruling on a motion for summary judgment or directed verdict, a trial judge should recognize that determining the existence of monopoly power often does not require resolution of the sharp factual disputes associated with such issues as agreement, intent, preparedness, or damages, issues frequently involving credibility disputes that ordinarily require jury resolution. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Undisputed facts may enable the trial judge to rule on a claim of monopoly power as a matter of law, employing economic analysis to the extent the data permit. In making such rulings, the trial judge may properly attach significance to market share evidence. Depending on what the undisputed evidence shows concerning a defendant’s market share, the structure of a market, and the activities of the defendant and others within the market, a particular record may permit no reasonable inference other than that the defendant lacks monopoly power. Such a conclusion may be reached if the defendant’s share is less than 50%, or even somewhat above that figure, and the record contains no significant evidence concerning the market structure to show that the defendant’s share of that market gives it monopoly power. In the absence of such evidence and any other evidence from which the power to control prices or exclude competition can reasonably be inferred, a monopolization claim may be withdrawn from a jury. If, however, the record contains evidence framing a fair jury question as to whether a defendant has monopoly power, the court should assist the jurors in assessing the significance of market share and of other factors bearing on monopoly power. It usually will be helpful to advise a jury that the higher a market share, the stronger is the inference of monopoly power.. And a jury can usefully be given some explanation concerning the relationship between market share and market structure to make it clear that, although a particular share might enable a company to have monopoly power in one market, the same share might not enable another company to have monopoly power in a different market with different market characteristics. The extent to which market characteristics should be explained to the jury in a particular case will vary with the nature of the underlying facts and the expert testimony. Sometimes, but not inevitably, it will be useful to suggest that a market share below 50% is rarely evidence of monopoly power, a share between 50% and 70% can occasionally show monopoly power, and a share above 70% is usually strong evidence of monopoly power. But when the evidence presents a fair jury issue of monopoly power, the jury should not be told that it must find monopoly power lacking below a specified share or existing above a specified share. Of course, cases may arise where the parties’ dispute concerning market definition creates a jury issue on monopoly power only if one side’s market definition, usually the plaintiff’s, is established. In such circumstances a jury can be instructed to find for the defendant if the plaintiff fails to prove its definition of the relevant market. Alternatively, a jury could be instructed to answer a special interrogatory concerning market definition, which would permit the trial judge to direct a verdict for the defendant if the plaintiff failed to prevail on its market definition. On the other hand, in some cases, there may be a genuine issue as to monopoly power in the market as defined by either party, in which event the market share under either definition would not be conclusive. However the instruction is phrased, it should not deflect the jury’s attention from indicia of monopoly power other than market share. See United States v. E.I. du Pont de Nemours & Co., supra; Juneau Square Corp. v. First National Bank of Wisconsin, 624 F.2d 798, 813 (7th Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1219 (9th Cir. 1977); Jack Winter, Inc. v. Koratron Corp., Inc., 375 F.Supp. 1, 68-69 (N.D.Cal.1974). See generally 2 P. Areeda & D. Turner, supra, ¶¶ 507-16. In light of these considerations, the District Court’s instruction, precluding a finding of monopoly power if the defendants’ market share was less than 50%, was erroneous for two reasons. First, with the record devoid of any evidence of UPSNY’s percentage of the relevant market, whether as defined by the plaintiffs or the defendants, the jury could not possibly apply an instruction to attach conclusive significance to a share below a specified percentage. More fundamentally, even if from all the evidence the jury might somehow have inferred that UPSNY carried less than half the packages in the New York commercial zone, that fact would not automatically preclude a finding of monopoly power by a jury entitled to assess monopoly power on the record as a whole. In this case, however, the challenged instruction does not require reversal because the plaintiffs’ evidence was insufficient to permit a reasonable jury to find that UPSNY possessed monopoly power. When the existence of significant market power is an essential element of a claim for treble damages, the plaintiff’s market power evidence, whether consisting of the defendant’s market share or of specific conduct indicating the defendant’s power to control prices or exclude competition, must be substantial. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696-97 & n.6, 82 S.Ct. 1404, 1409 & n.6, 8 L.Ed.2d 777 (1962); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980); California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 733 (9th Cir. 1979). In FLM Collision Parts, Inc. v. Ford Motor Co., 543 F.2d 1019 (2d Cir. 1976), cert. denied, 429 U.S. 1097, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), we noted that to prove a defendant’s possession of monopoly power ordinarily requires proof of the “approximate share” of the market controlled by the defendant. Id. at 1030. Yet, in this case, the plaintiffs presented no market share data, conceding to the jury that they did not have “any percentages.” We do not suggest that evidence of market share is invariably a requirement of a monopolization claim, but when such a traditional form of proof is lacking, the plaintiff must produce unambiguous evidence that the defendant has the power to control prices or exclude competition. Isolated instances of anti-competitive conduct will rarely suffice to show that a defendant’s market power is substantial enough to be monopoly power. Such acts may show what power a defendant is seeking, but not necessarily what power it has. See P. Areeda & D. Turner, supra, ¶ 513. Lacking market share data, the plaintiffs relied primarily on evidence purporting to show that UPSNY had consistently operated below cost while also realizing steady gains in its volume of traffic. No case supports the view that proof of below-cost pricing, without proof of market structure, is sufficient to establish the market power component of a monopolization claim. It is conceivable that predatory pricing persisting over an extended period could support an inference of monopoly power on the theory that sustaining substantial losses will at some point destroy either the defendant or its competition. But because the social costs of failing to distinguish between predatory pricing and competitive pricing are frequently high, see Joskow & Klevorick, A Framework for Analyzing Predatory Pricing Policy, 89 Yale L.J. 213, 223-25 (1979), sounder analysis permits examination of a defendant’s pricing behavior only after a plaintiff has produced some evidence of a defendant’s monopoly power in the relevant market, id. at 242-62. In this case, whatever inference might theoretically be drawn from persistent below-cost pricing, the evidence, considered as a whole, was clearly insufficient to establish a jury issue as to whether the defendants possessed monopoly power. Undisputed evidence showed that the defendants did not have the power to control prices. The defendants’ rates were subject to ICC approval and could not realistically be raised substantially without the defendants losing business to their principal competitor, the Postal Service. Undisputed evidence further showed that the defendants lacked the power to exclude competition. The Postal Service could not be excluded by the defendants, and entry into the market was open to anyone willing to make the modest investment required to engage in a local delivery service. Moreover, the plaintiffs’ evidence of predatory pricing was in itself seriously deficient. Whether or not one agrees that proof of pricing below marginal or average variable cost is essential to a predatory pricing claim, the plaintiffs could not demonstrate price predation by the defendants without proof permitting a careful assessment of the relationship between the defendants’ prices and costs. See generally 3 P. Areeda & D. Turner, supra, IH 710-11. The plaintiffs’ proof did not permit a reasonable fact-finder to make this assessment. The summaries of UPSNY’s operations lump all its traffic figures in one category, all its revenues in another, and all its profits in a third. It may be that an expert in cost accounting could have discerned in these gross figures a basis for the required analysis, but the plaintiffs presented no such testimony. Indeed, the plaintiffs did not even attempt to counter the testimony of the defendants’ expert that the summaries, properly adjusted, show that UPSNY earned substantial profits in all non-strike years. The record of the defendants’ payments to each other under the management agreement undercut the plaintiffs’ predatory pricing claim, showing that UPSNY earned millions of dollars of gross revenues and net profits during the relevant period. At most, the plaintiffs’ evidence established that UPSNY’s prices were lower than the prices charged by some of the plaintiffs. It is questionable whether uniform nationwide rates that are subject to approval by one government agency and to competitive pressure by another can ever be considered predatory merely because the rate schedule yields prices in one area that are lower than the prices charged by local competitors. But the plaintiffs could not prevail on their claim in any event unless they showed that the defendants’ prices were unrelated to competition on the merits. Even if, as the plaintiffs contend, the defendants’ uniform rates were made possible by using UPSO’s profits to subsidize UPSNY’s operations, the plaintiffs did not contest the defendants’ showing that their nationwide rate structure was calculated to be competitive with the rate structure of the Postal Service, and that the uniformity of their rates throughout the forty-eight states made their service more attractive to shippers. Considering all these factors in light of prior cases upholding the dismissal of predatory pricing claims, we have no difficulty concluding that the plaintiffs’ evidence of a monopolization violation was insufficient. See, e. g., Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., supra, 615 F.2d at 430-34; California Computer Products, Inc. v. International Business Machines Corp., supra, 613 F.2d at 739-43; Janich Brothers, Inc. v. American Distilling Co., 570 F.2d 848, 855-59 (9th Cir. 1977), cert. denied, 439 U.S. 829, 99 S.Ct. 103, 58 L.Ed.2d 122 (1978); Hanson v. Shell Oil Co., 541 F.2d 1352, 1357-59 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977). The plaintiffs do not challenge the dismissal of their attempted monopolization claim, to which the erroneous 50% market share instruction did not apply. That claim was properly rejected by the jury, and we therefore need not consider whether it was appropriate for submission to the jury. Judgment affirmed. . The plaintiffs also challenge the District Court’s refusal to allow them to recount statements made to them by certain garment manufacturers concerning the reasons their customers had given them for preferring to have their orders shipped by the defendants. The plaintiffs offered this hearsay testimony to prove that the manufacturers’ customers preferred the defendants because of their lower rates. Finally, the plaintiffs challenge the Court’s admission in connection with the issue of damages of a defense exhibit showing that from 1970 to 1975 the volume of small packages carried by at least one of the plaintiffs actually increased. . Compare Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20, 33-34 & n.49 (3d Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978) (issue of law), and H & B Equipment Co., Inc. v. International Harvester Co., 577 F.2d 239, 244-45 (5th Cir. 1978) (same), with Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 726-27 (7th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1278, 63 L.Ed.2d 601 (1980) (issue of fact), Ogilvie v. Fotomat Corp., 641 F.2d 581, 1980-81 Trade Cases (CCH) ¶ 63,817 (8th Cir. 1981) (same), and Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 617-18 (9th Cir. 1979), cert. denied, 447 U.S. 906, 100 S.Ct. 2988, 64 L.Ed.2d 854 (1980) (same). . In this case, though there was some dispute as to market definition, the jury was given nc choice between conflicting claims of market share because there were no data from either side concerning the defendants’ market share under either side’s view of the relevant market. . Compare Hanson v. Shell Oil Co., 541 F.2d 1352, 1359 (9th Cir. 1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 813, 50 L.Ed.2d 792 (1977) (failure to show that defendant’s prices were below marginal or average variable cost constituted failure as a matter of law to present a prima facie case of predatory pricing), and International Air Industries, Inc. v. American Excelsior Co., 517 F.2d 714, 724 (5th Cir. 1975), cert. denied, 424 U.S. 943, 96 S.Ct Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 15. 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_usc2sect	402	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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". EWING v. GARDNER. No. 11188. United States Court of Appeals Sixth Circuit. Dec. 20, 1950. Joseph B. McGrath, Washington, D. C. (H. G. Morison, Washington, D. C., Ray J. O’Donnell, Frank J. Richter, Cincinnati, Ohio, on the brief; Edward H. Hickey, Joseph B. McGrath, Attorneys, Dept, of Justice, Washington, D. C., Ira Z. Acoff, Leonard B. Zeisler, Attorneys, Fed. Security Agency, Washington, D. C., of counsel), for appellant. Theodore F. Gardner, Cincinnati, Ohio (Theodore F. Gardner, Cincinnati, Ohio), on the brief, for appellee. Before MARTIN, McALLISTER and MILLER, Circuit Judges. PER CURIAM. The appellant, as Federal Security Administrator, appeals from a judgment of the District Court which reversed a decision of the Federal Security Administrator denying the claim of appellee as executor of the estate of Charles L. Warner, deceased, to certain primary insurance benefits of said deceased as a wage-earner under the Social Security Act, as amended, 42 U.S.C.A. § 301 et seq. For the detailed facts and the reasons for the ruling, see Gardner v. Ewing, 88 F.Supp. 315. On July 11, 1944, Warner, the wage-earner, being over 65 years of age, applied for primary insurance benefits under Section 202(a) of the Social Security Act as amended, Section 402(a), Title 42 U.S. C.A. The . claim was disallowed because the wage-earner failed to furnish requested proof of his- age. Warner thereafter died on April 19, 1946. On September 30, 1946, the appellee as executor of the wage-earner’s estate filed with the Social Security Administration his application for a lump sum benefit and all other benefits payable to the estate based upon the deceased wage-earner’s wage record. The appellee also submitted satisfactory documentary evidence of the wage-earner’s date of birth, showing that he became 65 years of age on September 11, 1938. The Social Security Administration awarded the appellee a lump sum death payment, but ruled that the appellee as executor of the estate of the deceased wage-earner was not entitled to receive primary insurance benefits under the Act. The appellee sought a review of this ruling by filing the present action in the U. S. District Court. Section 405(g), Title 42 U.S.C.A. The District Court reversed the ruling and held that the appellee was entitled to recover from the appellant the primary insurance benefits payable under the Act for the period of July 1944 to March 1946 inclusive, and remanded the case to the Social Security Administration for computation of the benefits. The judgment also directed that the appellant pay the costs olf the action. This appeal followed. Section 202(a) of the Social Security Act as amended, Section 402(a), 42 U.S.C.A., under which the claim is made, requires three conditions to exist to entitle the wage-earner to the monthly primary insurance benefit, namely, (1) that he “is a fully insured individual”, (2) “has attained the age of sixty-five,” and (3) “has filed application for primary insurance benefits”. If these three facts exist he is entitled by the wording of the statute “to receive a primary insurance benefit * * * for each month, beginning with the month in which such individual becomes so entitled to such insurance benefits * * Appellant contends that the wage-earner did not become entitled to the primary insurance benefit because he did not prove before his death that he was sixty-five when he filed his application. We do not agree. The statute refers to the existence of the fact, not to the furnishing oif evidence to prove the fact if its existence should be questioned. Satisfactory proof was subsequently furnished to the Administrator. Accordingly, on July 11, 1944, when the application was filed the three conditions or facts necessary under the statute to entitle the wage-earnfer to receive the monthly primary insurance benefit actually existed. His right to the monthly primary insurance benefit accrued at that time. There is nothing in the Act which requires that proof of the fact that the applicant has attained the age of sixty-five be furnished during the applicant’s lifetime. In the absence of an express provision in the statute to the contrary, the furnishing of such proof is a condition precedent to payment, but not to liability. Love v. Northwestern National Ins. Co., 5 Cir., 119 F.2d 251; Lydon v. New York Life Ins. Co., 8 Cir., 89 F.2d 78. Compare: Patterson, Exec. v. National Life & Accident Ins. Co., 6 Cir., 183 F.2d 745; Ewing v. Risher, 10 Cir., 176 F.2d 641. Appellant relies upon Social Security Administration Regulation No. 3, Title 20 CFR, Cum.Supp., Ch. Ill, Part 403. Section 403.704(b) of the Regulation provides — ’“Whenever, after the filing of an application for benefits * * , additional evidence or information is asked for by the Board, * * the applicant’s disregard thereof for a period of one year * * * shall be considered as an abandonment of such application or request. Thereafter the Board will take further action only upon the filing of a new application, or request unless it is shown that such disregard by the application was due to a cause or causes not reasonably within his control. * * Section 205(a) of the Social Security Act as amended, Section 405(a), Title 42 U.S.C.A. gives the Board authority to make rules and regulations and to establish procedures not inconsistent with the provisions of the Act, which are necessary or appropriate to carry out such provision. The appellant contends that under the Regulation the wage-earner abandoned his application and that appellee’s present claim is barred. The District Judge held the Regulation invalid, in that it is inconsistent with the provisions oil the Act. There is nothing in the Act which provides for forfeiture for failure to' prosecute with diligence. We are of the opinion that it does not necessarily follow that the Regulation is invalid. If it is construed as cancelling or forfeiting rights which previously accrued upon the filing of the application, it is an invalid ■restriction placed upon the rights conferred by the statute. 'But if it is construed as dismissing without prejudice a proceeding to enforce existing rights and thus, for administrative purposes, clearing the files oif pending but unprosecuted proceedings without a forfeiture of the existing rights, it is a reasonable, valid administrative provision. In either event, it is not a bar to the present action. There is nothing in the Act which during the lifetime of the wage-earner bars the prosecution of a claim for primary benefits after a previous proceeding has been dismissed without prejudice. If the wage-earner had a valid claim at the time of his death, his administrator can enforce that claim as an asset of the estate by proper proceeding for the benefit of the estate. We do not agree with appellant’s contention that appellee, as Executor, can not prosecute the claim. Although he is not a beneficiary designated by the Act, he is enforcing the claim of a beneficiary who is designated by the Act. Beers v. Federal Security Administrator, 2 Cir., 172 F.2d 34; Baumet v. United States, 2 Cir., 177 F.2d 806. The right of the wage-earner to the primary benefit is not a gratuity, but is a property right which can be enforced by court action. Dismuke v. United States, 297 U.S. 167, 170, 56 S.Ct. 400, 80 L.Ed. 561; Lynch v. United States, 292 U.S. 571, 576-577, 54 S.Ct. 840, 78 L.Ed. 1434. Section 207 of the Act, Sec. 407, Title 42 U.S.C.A. prohibiting the assignment of any future payment is not applicable to the present case which deals with accrued payments. The right to assess costs against the Administrator has been previously upheld by this Court in a similar situation. Walling v. Crown Overall Mfg. Co., 6 Cir., 149 F.2d 152. See also Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U.S. 81, 61 S.Ct. 485, 85 L.Ed. 595. We recognize the contrary ruling in Walling v. Norfolk Southern Ry. Co., 4 Cir., 162 F.2d 95 and Walling v. Frank Adam Electric Co., 8 Cir., 163 F.2d 277, but feel that the prior ruling of our own circuit is controlling. The judgment is affirmed. 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 42? Answer with a number. Answer:
songer_genapel1	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 is to determine the nature of the first listed appellant. UNITED STATES v. CARPENTER. No. 8300. Circuit Court of Appeals, Seventh Circuit. May 26, 1944. Attorney Lewis L. Levin was appointed by this court to represent Carpenter on this appeal. Appellant is now serving in the Army, having been paroled for such service. Lewis L. Levin, of Chicago, Ill., for appellant. Howard L. Doyle and Marks Alexander, U. S. Atty., both of Springfield, Ill., for appellee. Before EVANS, SPARKS and MAJOR, Circuit Judges. EVANS, Circuit Judge. Appellant argues that a proper interpretation of the grammatical and structural composition of the statute (18 U.S.C.A. § 409) necessitates the conclusion that Congress meant to impose penalties for any of three separate classes or categories of crimes. It did not, however, mean to make a separate crime of every act described in each of the several classes or categories. In support of such theory, counsel points out that each category begins with the identical word “whoever” and is set off by semi-colons, whereas the several condemned acts within the respective categories are not so stated, merely being joined with the disjunctive “or” and separated by commas. 0 The statute reads (we add the numerals which appellant uses to designate his categories) : “(1) Whoever shall unlawfully break the seal of any railroad car * * * or shall enter any such car with intent in either case to commit larceny therein; (2) or whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, * * * with intent to convert to his own use any goods or chattels * * , or shall buy or receive or have in his possession any such goods or chattels, knowing the same to have been stolen; (3) or whoever shall steal or shall unlawfully take, carry away, or by fraud or deception obtain with intent to convert * * any baggage, * * * or shall break into, steal, take, carry away, or conceal any of the' contents of such baggage, or shall buy, receive, or have in his possession any such baggage * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * * It is counsel’s urge that the second and third counts, namely, for stealing and for receiving, are for but a single crime in that they are both covered by the one category, i. e., class (2), and therefore appellant has suffered two five year sentences for but one crime. Appellant also stresses the phrase "in each case" as being indicative of Congressional intent to impose a sentence only upon each of the classes of acts outlined. A second contention, which was the one involved in the habeas corpus proceedings, is that the charge of stealing and possessing does not define two crimes because only one criminal intent was involved. In other words, in all cases where there is a stealing, there is, per se, a possessing. Counsel stresses the fact that the bill of exceptions, which was not consulted on the prior appeal because not duly filed, disclosed that appellant was not even at the site of the crime, but a block distant, and only by virtue of a conspiracy or by proxy could he be deemed to have participated in the stealing. Appellant also contends that there is duplication of punishment in the imposition of a sentence on the conspiracy count, for the same evidence was used to gain a conviction on this count as was used to establish guilt under the first three counts. The earnestness of counsel, the severity of the sentence, and the'parolement of appellant to service in the army, have all impelled us to re-examine this statute and the decisions. We repeat the statute, but in skeleton form. It would seem that crimes were described therein as follows: (1) break the seal enter (2) (as to goods or chattels in interstate commerce) steal unlawfully take carry away conceal obtain by fraud or deception buy possess (3) (as to any baggage) steal unlawfully take carry away obtain by fraud or deception. Congress defined and penalized every conceivable form of act, every gradation of the process of .burglarizing interstate commerce, when it enumerated these many acts. It intended to make criminal amy act therein recited. If two of the acts in any category were disclosed, two crimes were committed. It would be different if the terms were synonymous or the acts, one within the scope, or partial scope of the other, but each defines an act of a different, nature. It is true that one who steals generally possesses, but the contrary is not inherently true. Another possible explanation for the categorical structure of the section might be that one category relates to the stealing of interstate freight, a second to stealing of baggage, and the third, the initial steps of such larceny, i. e., entering a freight car. We are unable to read the statute other than that Congress intended to make each and every separate act named, a separate crime. See Blockburger v. United States, 7 Cir., 50 F.2d 795; Id., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Carpenter v. Hudspeth, 10 Cir., 112 F.2d 126. If the construction seems harsh, it must also be appreciated that there is a vast difference between the maximum and the minimum sentence provision as there is a vast difference between the action and motives of different offenders. In the trial judge, there is lodged wide discretion, and if misjudgment results in too severe judgments, the accused may secure relief through executive clemency, as well as by parole. Our problem is to construe the statute. In so doing, we cannot rewrite it, nor ignore the language which is clear. The court is indebted to counsel appointed to represent appellant, for his earnest and devoted effort to aid the court. The judgment is affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_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. CAMRETA v. GREENE, personally and as next friend of S. G., a minor, et al. No. 09-1454. Argued March 1,2011 — Decided May 26, 2011 Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scaua, Ginsburg, and Alito, JJ., joined. Scalia, J., filed a concurring opinion, post, p. 714. Sotomayor, J., filed an opinion concurring in the judgment, in which Breyer, J., joined, post, p. 714. Kennedy, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 716. John R. Kroger, Attorney General of Oregon, argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 09-1454 were Mary H. Williams, Solicitor General, and Anna Joyce, Deputy Solicitor General. Christopher Dennis Bell and Steven Edward Griffin filed briefs for petitioner in No. 09-1478. Acting Principal Deputy Solicitor General Kruger argued the cause for the United States as amicus curiae in support of petitioners. With her on the brief were Acting Solicitor General Katyal, Assistant Attorneys General West and Breuer, Acting Deputy Solicitor General Mcheese, Eric J. Feigin, Thomas M. Bondy, Sushma Soni, and John M. Pellettieri. Carolyn A. Kubitschek argued the cause for respondents in both cases. With her on the brief were David J. hansner, Carolyn Shapiro, Mikel R. Miller, and Robert E. hehrer Together with No. 09-1478, Alford, Deputy Sheriff, Deschutes County, Oregon v. Greene, Personally and as Next Friend of S. G., a Minor, et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in both eases were filed for the State of Arizona et al. by Terry Goddard, Attorney General of Arizona, Paula S. Bickett, Chief Counsel, and Kathleen P. Sweeney, Dawn R. Williams, and Michelle R. Nimmo, Assistant Attorneys General, by Richard A. Svobodny, Acting Attorney General of Alaska, and Russell A Suzuki, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Troy King of Alabama, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of California, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Peter J. Nickles of the District of Columbia, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Steve Six of Kansas; Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, Janet T. Mills of Maine, Douglas F. Gansler of Maryland, Michael A Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Steve Bullock of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Michael A. Delaney of New Hampshire, Paula T. Dow of New Jersey, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina, Marty J. Jackley of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and Bruce A Salzburg of Wyoming; for the Center on the Administration of Criminal Law by Michael Y. Scudder, Jr., and Anthony S. Barkow; for the Cook County Public Guardian by Kass A Plain; and for the National Association of Social Workers et al. by Mary M. Calkins, George E. Quillin, and Carolyn 1. Polowy. Briefs of amici curiae urging affirmance in both eases were filed for the American Family Rights Association et al. by Christopher Landau; for the Center for Law and Education et al. by Linda T. Coberly and Gene C. Schaerr; for the Eagle Forum Education & Legal Defense Fund, Inc., by Lawrence J. Joseph; for the Family Defense Center by Diane L. Redleaf; for the Juvenile Law Center et al. by Marsha Levick and Lourdes Rosado; for the Legal Aid Society, Juvenile Rights Practice, by Steven Banks and Gary Solomon; for the Loyola Civitas Childlaw Center et al. by Bruce A. Boyer; for the National Association of Criminal Defense Lawyers et al. by Mark R. Brown and David M. Porter; for the New York University School of Law Family Defense Clinic et al. by Charles L. Kerr, Martin Guggenheim, and Susan Jacobs; for the Pacific Justice Institute et al. by Dennis B. Atchley, Donnie R. Cox, David J. Beauvais, Shawn A McMillan, and Paul W. Leehey; and for the Society of Catholic Social Scientists by Stephen M. Krason. Briefs of amici curiae were filed in both cases for the Battered Women’s Resource Center et al. by Lauren E. Handel and Malinda Morain; for the California State Association of Counties et al. by Gary C. Seiser and John E. B. Myers; for the Center for Individual Rights by Michael E. Rosman; for the Children’s Advocacy Institute by Robert C. Fellmeth and Julianne D’Angelo Fellmeth; for the Children’s Law Section of the State Bar of Michigan by Elizabeth S. Warner; for the District Attorneys of San Diego County et al. by Sophia G. Roach; for the Family Research Council et al. by David Austin R. Nimocks; for Legal Services for Children by John A. Basinger, Michael Atkins, and Angela C. Vigil; for Liberty Counsel by Mathew D. Staver, Anita L. Staver, Stephen M. Crampton, and Mary E. McAlister; for the National School Boards Association et al. by Francisco M. Negrón, Jr., Matthew W. Wright, and David K. Pauole; and for The Rutherford Institute by John W. Whitehead. Mr. Cooley, pro se, Irene T. Wakabayashi, Phyllis C. Asayama, and Cassandra Hart filed a brief for Los Angeles County District Attorney Steve Cooley et al. in No. 09-1478. Justice Kagan delivered the opinion of the Court. Almost a decade ago, a state child protective services worker and a county deputy sheriff interviewed a girl at her elementary school in Oregon about allegations that her father had sexually abused her. The girl’s mother subsequently sued the government officials on the child’s behalf for damages under Rev. Stat. § 1979,42 U. S. C. § 1983, claiming that the interview infringed the Fourth Amendment. The United States Court of Appeals for the Ninth Circuit agreed, ruling that the officials had violated the Constitution by failing to obtain a warrant to conduct the interview. But the Court of Appeals further held that qualified immunity shielded the officials from monetary liability because the constitutional right at issue was not clearly established under existing law. The two officials sought this Court’s review of the Ninth Circuit’s ruling on the Fourth Amendment. We granted their petitions to examine two questions. First, may government officials who prevail on grounds of qualified immunity obtain our review of a court of appeals’ decision that their conduct violated the Constitution? And second, if we may consider cases in this procedural posture, did the Ninth Circuit correctly determine that this interview breached the Fourth Amendment? We conclude that this Court generally may review a lower court’s constitutional ruling at the behest of a government official granted immunity. But we may not do so in this case for reasons peculiar to it. The case has become moot because the child has grown up and moved across the country, and so will never again be subject to the Oregon in-school interviewing practices whose constitutionality is at issue. We therefore do not reach the Fourth Amendment question in this case. In line with our normal practice when mootness frustrates a party’s right to appeal, see United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), we vacate the part of the Ninth Circuit’s opinion that decided the Fourth Amendment issue. I In February 2003, police arrested Nimrod Greene for suspected sexual abuse of a young boy unrelated to him. During the investigation of that offense, the boy’s parents told police that they suspected Greene of molesting his 9-year-old daughter S. G. The police reported this information to the Oregon Department of Human Services, which assigned petitioner Bob Camreta, a child protective services caseworker, to assess S. G.’s safety. Several days later, Camreta, accompanied by petitioner James Alford, a Deschutes County deputy sheriff, went to S. G.’s elementary school and interviewed her about the allegations. Camreta and Alford did not have a warrant, nor had they obtained parental consent to conduct the interview. Although S. G. at first denied that her father had molested her, she eventually stated that she had been abused. Greene was indicted and stood trial for sexually abusing S. G., but the jury failed to reach a verdict and the charges were later dismissed. Respondent Sarah Greene, S. G.’s mother, subsequently sued Camreta and Alford on S. G.’s behalf for damages under 42 U. S. C. § 1983, which authorizes suits against state officials for violations of constitutional rights. S. G. alleged that the officials’ in-school interview had breached the Fourth Amendment’s proscription on unreasonable seizures. The District Court granted summary judgment to Camreta and Alford, and the Ninth Circuit affirmed. The Court of Appeals first ruled that the interview violated S. G.’s rights because Camreta and Alford had “seize[d] and interrogate[d] S. G. in the absence of a warrant, a court order, exigent circumstances, or parental consent.” 588 F. 3d 1011, 1030 (2009) (footnote omitted). But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. Id., at 1031-1033. The Ninth Circuit explained why it had ehosen to rule on the merits of the constitutional claim, rather than merely hold that the officials were immune from suit. By addressing the legality of the interview, the court said, it could “provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” Id., at 1022. That guidance came in no uncertain terms: “[G]overnment officials investigating allegations of child abuse,” the court warned, “should cease operating on the assumption that a ‘special need’ automatically justifies dispensing with traditional Fourth Amendment protections in this context.” Id., at 1033. Although the judgment entered was in their favor, Camreta and Alford petitioned this Court to review the Ninth Circuit’s ruling that their conduct violated the Fourth Amendment. S. G. declined to cross-petition for review of the decision that the officials have immunity. We granted certiorari. 562 U. S. 960 (2010). II We first consider our ability to act on a petition brought by government officials who have won final judgment on grounds of qualified immunity, but who object to an appellate court’s ruling that they violated the plaintiff’s constitutional rights. Camreta and Alford are, without doubt, prevailing parties. The Ninth Circuit’s decision shielded them from monetary liability, and S. G. chose not to contest that ruling. So whatever else follows, they will not have to pay S. G. the damages she sought. The question we confront is whether we may nonetheless review the Court of Appeals’ holding that the officials violated the Constitution. The statute governing this Court’s jurisdiction authorizes us to adjudicate a case in this posture, and S. G. does not contend otherwise. The relevant provision confers unqualified power on this Court to grant certiorari “upon the petition of any party.” 28 U. S. C. § 1254(1) (emphasis added). That language covers petitions brought by litigants who have prevailed, as well as those who have lost, in the court below. See E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice 87 (9th ed. 2007) (hereinafter Stern & Gressman). S. G., however, alleges two impediments to our exercise of statutory authority here, one constitutional and the other prudential. First, she claims that Article III bars review because petitions submitted by immunized officials present no case or controversy. See Brief for Respondent 31-39. Second, she argues that our settled practice of declining to hear appeals by prevailing parties should apply with full force when officials have obtained immunity. ’ See id., at 24-27. We disagree on both counts. A Article III of the Constitution grants this Court authority to adjudicate legal disputes only in the context of “Cases” or “Controversies.” To enforce this limitation, we demand that litigants demonstrate a “personal stake” in the suit. Summers v. Earth Island Institute, 555 U. S. 488, 493 (2009) (internal quotation marks omitted); see also United States Parole Comm’n v. Geraghty, 445 U. S. 388, 395-397 (1980). The party invoking the Court’s authority has such a stake when three conditions are satisfied: The petitioner must show that he has “suffered an injury in fact” that is caused by “the conduct complained of” and that “will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992) (internal quotation marks omitted). And the opposing party also must have an ongoing interest in the dispute, so that the case features “that concrete adverseness which sharpens the presentation of issues.” Los Angeles v. Lyons, 461 U. S. 95, 101 (1983) (internal quotation marks omitted). To ensure a case remains “fit for federal-court adjudication,” the parties must have the necessary stake not only at the outset of litigation, but throughout its course. Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997). We have previously recognized that an appeal brought by a prevailing party may satisfy Article Ill’s case-or-controversy requirement. See Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326, 332-336 (1980). Indeed, we have twice before allowed a party for whom judgment was entered to challenge an unfavorable lower court ruling. See ibid.; Electrical Fittings Corp. v. Thomas & Betts Co., 307 U. S. 241 (1939). In that context as in others, we stated, the critical question under Article III is whether the litigant retains the necessary personal stake in the appeal. Deposit Guaranty, 445 U. S., at 334. As we will explain, a court will usually invoke rules of “federal appellate practice” to decline review of a prevailing party's challenge even when he has the requisite stake. Id., at 333; see infra, at 703-704. But in such a case, Article III is not what poses the bar; these rules of practice “d[o] not have [their] source in the jurisdictional limitations” of the Constitution. Deposit Guaranty, 445 U. S., at 333-334. So long as the litigants possess the personal stake discussed above, an appeal presents a case or controversy, no matter that the appealing party was the prevailing party below. This Article III standard often will be met when immunized officials seek to challenge a ruling that their conduct violated the Constitution. That is not because a court has made a retrospective judgment about the lawfulness of the officials' behavior, for that judgment is unaccompanied by any personal liability. Rather, it is because the judgment may have prospective effect on the parties. The court in such a case says: “Although this official is immune from damages today, what he did violates the Constitution and he or anyone else who does that thing again will be personally hable.” If the official regularly engages in that conduct as part of his job (as Camreta does), he suffers injury caused by the adverse constitutional ruling. So long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action. Cf. id., at 337-338 (discussing prevailing party’s stake in a ruling’s prospective effects). Only by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability. And conversely, if the person who initially brought the suit may again be subject to the challenged conduct, she has a stake in preserving the court’s holding. See Erie v. Pap’s A. M., 529 U. S. 277, 287-289 (2000); Honig v. Doe, 484 U. S. 305, 318-323 (1988); cf. Lyons, 461 U. S., at 111 (examining whether the plaintiff had shown “a sufficient likelihood that he will again be wronged in a similar way”). Only if the ruling remains good law will she have ongoing protection from the practice. We therefore reject S. G.’s view that Article III bars us from adjudicating any and all challenges brought by government officials who have received immunity below. That the victor has filed the appeal does not deprive us of jurisdiction. The parties in such eases may yet have a sufficient “interest in the outcome of [a litigated] issue” to present a case or controversy. Deposit Guaranty, 445 U. S., at 336, n. 7. B Article III aside, an important question of judicial policy remains. As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party, even when the Constitution allowed us to do so. See, e. g., Gunn v. University Comm. to End War in Viet Nam, 399 U. S. 383, 390, n. 5 (1970); New York Telephone Co. v. Maltbie, 291 U. S. 645, 646 (1934) (per curiam); see also Bunting v. Mellen, 541 U. S. 1019, 1023 (2004) (Scalia, J., dissenting from denial of certiorari) (“[0]ur practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which he prevailed” (quoting Stern & Gressman 79 (8th ed. 2002))). Our resources are not well spent superintending each word a lower court utters en route to a final judgment in the petitioning party’s favor. See California v. Rooney, 483 U. S. 307, 311 (1987) (per curiam) (“[Tjhat the Court of Appeal reached its decision through analysis different than this Court might have used does not make it appropriate... for the prevailing party to request us to review it”). We therefore have adhered with some rigor to the principle that “[tjhis Court reviews judgments, not statements in opinions.” Ibid, (internal quotation marks omitted). On the few occasions when we have departed from that principle, we have pointed to a “policy reaso[n]... of sufficient importance to allow an appeal” by the winner below. Deposit Guaranty, 445 U. S., at 336, n. 7. We think just such a reason places qualified immunity eases in a special category when it comes to this Court’s review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opinions.” Rooney, 483 U. S., at 311 (internal quotation marks omitted); see Bunting, 541 U. S., at 1023 (Scalia, J., dissenting from denial of certiorari) (stating that such a determination is “not mere dictum in the ordinary sense”). They are rulings that have a significant future effect on the conduct of public officials — both the prevailing parties and their co-workers — and the policies of the government units to which they belong. See supra, at 702-703. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court’s permission, to promote clarity — and observance — of constitutional rules. We describe in more detail below these features of the qualified immunity world and why they came to be. We hold that taken together, they support bending our usual rule to permit consideration of immunized officials’ petitions. To begin, then, with the nature of these suits: Under § 1983 (invoked in this case) and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), a plaintiff may seek money damages from government officials who have violated her constitutional or statutory rights. But to ensure that fear of liability will not “unduly inhibit officials in the discharge of their duties,” Anderson v. Creighton, 483 U. S. 635, 638 (1987), the officials may claim qualified immunity; so long as they have not violated a “clearly established” right, they are shielded from personal liability, Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). That means a court can often avoid ruling on the plaintiff’s claim that a particular right exists. If prior case law has not clearly settled the right, and so given officials fair notice of it, the court can simply dismiss the claim for money damages. The court need never decide whether the plaintiff’s claim, even though novel or otherwise unsettled, in fact has merit. And indeed, our usual adjudicatory rules suggest that a court should forbear resolving this issue. After all, a “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 445 (1988); see also Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandéis, J., concurring). In this category of qualified immunity cases, a court can enter judgment without ever ruling on the (perhaps difficult) constitutional claim the plaintiff has raised. Small wonder, then, that a court might leave that issue for another day. But we have long recognized that this day may never come — that our regular policy of avoidance sometimes does not fit the qualified immunity situation because it threatens to leave standards of official conduct permanently in limbo. County of Sacramento v. Lewis, 523 U. S. 833, 841, n. 5 (1998). Consider a plausible but unsettled constitutional claim asserted against a government official in a suit for money damages. The court does not resolve the claim because the official has immunity. He thus persists in the challenged practice; he knows that he can avoid liability in any future damages action, because the law has still not been clearly established. Another plaintiff brings suit, and another court both awards immunity and bypasses the claim. And again, and again, and again. So the moment of decision does not arrive. Courts fail to clarify uncertain questions, fail to address novel claims, fail to give guidance to officials about how to comply with legal requirements. See, e. g., ibid,.; Wilson v. Layne, 526 U. S. 603, 609 (1999). Qualified immunity thus may frustrate “the development of constitutional precedent” and the promotion of law-abiding behavior. Pearson v. Callahan, 555 U. S. 223, 237 (2009). For this reason, we have permitted lower courts to avoid avoidance — that is, to determine whether a right exists before examining whether it was clearly established. See, e. g., ibid.; Lewis, 523 U. S., at 841, n. 5. Indeed, for some time we required courts considering qualified immunity claims to first address the constitutional question, so as to promote “the law's elaboration from case to case.” Saucier v. Katz, 533 U. S. 194, 201 (2001). More recently, we have left this matter to the discretion of lower courts, and indeed detailed a range of circumstances in which courts should address only the immunity question. See Pearson, 555 U. S., at 236-242. In general, courts should think hard, and then think hard again, before turning small eases into large ones. But it remains true that following the two-step sequence— defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials. Id., at 236; see id., at 236-242 (discussing factors courts should consider in making this determination). Here, the Court of Appeals followed exactly this two-step process, for exactly the reasons we have said may in select circumstances make it “advantageous.” Id., at 242. The court, as noted earlier, explained that it was “addressing] both prongs of the qualified immunity inquiry... to provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” 588 F. 3d, at 1022. To that end, the court adopted constitutional standards to govern all in-school interviews of suspected child abuse victims. See id., at 1030. And the court specifically instructed government officials to follow those standards going forward — to “cease operating on the assumption” that warrantless interviews are permitted. See id., at 1033. With the law thus clearly established, officials who conduct this kind of interview will not receive immunity in the Ninth Circuit. And the State of Oregon has done just what we would expect in the wake of the court's decision: It has provided revised legal advice, consonant with the Ninth Circuit’s ruling, to child protective services workers wishing to interview children in schools. See Tr. of Oral Arg. 14. The court thus accomplished what it set out to do: settle a question of constitutional law and thereby guide the conduct of officials. Given its purpose and effect, such a decision is reviewable in this Court at the behest of an immunized official. No mere dictum, a constitutional ruling preparatory to a grant of immunity creates law that governs the official’s behavior. If our usual rule pertaining to prevailing parties applied, the official would “fac[e] an unenviable choice”: He must either acquiesce in a ruling he had no opportunity to contest in this Court, or “defy the views of the lower court, adhere to practices that have been declared illegal, and thus invite new suits and potential punitive damages.” Pearson, 555 U. S., at 240-241 (internal quotation marks and brackets omitted). And if our usual bar on review applied, it would undermine the very purpose served by the two-step process, “which is to clarify constitutional rights without undue delay.” Bunting, 541 U. S., at 1024 (Scalia, J., dissenting from denial of certiorari). This Court, needless to say, also plays a role in clarifying rights. Just as that purpose may justify an appellate court in reaching beyond an immunity defense to decide a constitutional issue, so too that purpose may support this Court in reviewing the correctness of the lower court’s decision. We emphasize, however, two limits of today’s holding. First, it addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S. G. appealed the judgment in the officials’ favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds. Second, our holding concerns only what this Court may review; what we actually will choose to review is a different matter. That choice will be governed by the ordinary principles informing our decision whether to grant certiorari—a “power [we]... sparingly exereis[e].” Forsyth v. Hammond, 166 U. S. 506, 514 (1897); see also id., at 514-515 (this Court grants review “only when the circumstances of the case satisfy us that the importance of the question involved, the necessity of avoiding conflict [in the lower courts], or some matter affecting the interests of this nation... demands such exercise”); this Court’s Rule 10. Our decision today does no more than exempt one special category of cases from our usual rule against considering prevailing parties’ petitions. Going forward, we will consider these petitions one by one in accord with our usual standards. Ill Although we reject S. G.’s arguments for dismissing this case at the threshold, we find that a separate jurisdictional problem requires that result: This case, we conclude, is moot. As we explained above, supra, at 702-703, in a dispute of this kind, both the plaintiff and the defendant ordinarily retain a stake in the outcome. That is true of one defendant here: Camreta remains employed as a child protective services worker, so he has an interest in challenging the Ninth Circuit’s ruling requiring him to obtain a warrant before conducting an in-school interview. But S. G. can no longer claim the plaintiff’s usual stake in preserving the court’s holding because she is no longer in need of any protection from the challenged practice. After we granted certiorari, we discovered that S. G. has “moved to Florida, and ha[s] no intention of relocating back to Oregon.” Brief for Respondent 13, n. 13. What is more, S. G. is now only months away from her 18th birthday — and, presumably, from her high school graduation. See id., at 31. S. G. therefore cannot be affected by the Court of Appeals' ruling; she faces not the slightest possibility of being seized in a school in the Ninth Circuit's jurisdiction as part of a child abuse investigation. When “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” we have no live controversy to review. United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968); see, e. g., Atherton Mills v. Johnston, 259 U. S. 13, 15-16 (1922) (suit contesting the validity of a child labor statute mooted when plaintiff-child was “[no longer] within the ages affected by the act”); DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam) (suit challenging law school admissions policy mooted when plaintiff neared graduation). Time and distance combined have stymied our ability to consider this petition. Camreta makes only one counterargument: He avers that S. G. has a continuing interest in the Ninth Circuit's constitutional ruling because it may help her establish a municipal liability claim against Deschutes County. See Tr. of Oral Arg. 7; id., at 8. S. G.’s initial complaint charged that the county has an official policy of unconstitutionally subjecting schoolchildren to police interrogation. See n. 2, supra. Finding no evidence of such a policy (even assuming that an unlawful seizure had occurred in this case), the District Court granted summary judgment to the county, App. to Pet. for Cert, in No. 09-1454, pp. 66-67, and S. G. did not appeal that ruling, 588 F. 3d, at 1020, n. 4. And although S. G. recently sought to reinstate her claim against the county, the District Court denied that motion. 6:05-cv-06047-AA, Docket Entry No. 139 (D Ore., Jan. 4, 2011). Whatever interest S. G. might have were her municipal liability claim still pending (an issue we need not and do not decide), we do not think S. G.'s dismissed claim against a different defendant involving a separate legal theory can save this case from mootness. See Commodity Futures Trading Comm’n v. Board of Trade of Chicago, 701 F. 2d 653, 656 (CA7 1983) (Posner, J.) (“[O]ne can never be certain that findings made in a decision concluding one lawsuit will not some day... control the outcome of another suit. But if that were enough to avoid mootness, no case would ever be moot”). We thus must decide how to dispose of this case. When a civil suit becomes moot pending appeal, we have the authority to “direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” 28 U. S. C. § 2106. Our “established” (though not exceptionless) practice in this situation is to vacate the judgment below. See Munsingwear, 340 U. S., at 39; Alvarez v. Smith, 558 U. S. 87, 94 (2009). “A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance,” we have emphasized, “ought not in fairness be forced to acquiesce in” that ruling. U S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 25 (1994). The equitable remedy of vacatur ensures that “those who have been prevented from obtaining the review to which they are entitled [are] not... treated as if there had been a review.” Munsingwear, 340 U. S., at 39. S. G. contends that vacatur is inappropriate in the qualified immunity context because that disposition would “undermine” the Court of Appeals’ choice to “decide [a] constitutional questio[n]” to govern future cases. Brief for Respondent 41-42; Tr. of Oral Arg. 47. Far from counseling against vacatur, S. G.’s argument reveals the necessity of that procedural course. The point of vacatur is to prevent an unreviewable decision “from spawning any legal consequences,” so that no party is harmed by what we have called a “preliminary” adjudication. Munsingwear, 340 U. S., at 40-41. As we have just explained, a constitutional ruling in a qualified immunity case is a legally consequential decision; that is the very reason we think it appropriate for review even at the behest of a prevailing party. See supra, at 704-708. When happenstance prevents that review from occurring, the normal rule should apply: Vacatur then rightly “strips the decision below of its binding effect,” Deakins v. Monaghan, 484 U. S. 193, 200 (1988), and “clears the path for future relitigation,” Munsingwear, 340 U. S., at 40. In this case, the happenstance of S. G.’s moving across country and becoming an adult has deprived Camreta of his appeal rights. Mootness has frustrated his ability to challenge the Court of Appeals’ ruling that he must obtain a warrant before interviewing a suspected child abuse victim at school. We therefore vacate the part of the Ninth Circuit’s opinion that addressed that issue, and remand for further proceedings consistent with this opinion. See, e. g., Arove v. Hoffman, 552 U. S. 117, 118-119 (2008) (per curiam); Selig v. Pediatric Specialty Care, Inc., 551 U. S. 1142 (2007). It is so ordered. Because Greene filed suit as next friend for her minor daughter Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Rex Milton ROSE, Petitioner-Appellant, v. Charles E. MORRIS, Secretary, Department of Social & Health Services, State of Washington, Respondent-Appellee. No. 78-2613. United States Court of Appeals, Ninth Circuit. May 15, 1980. David F. Stobaugh, Bendich, Stobaugh & Strong, Seattle, Wash., for petitioner-appellant. Nate D. Mannakee, Olympia, Wash., for respondent-appellee. Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, District Judge. The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation. DUNIWAY, Circuit Judge: Habeas Corpus. The district court denied the writ on the ground that Rose was not “in custody pursuant to the judgment of a State court” within the meaning of 28 ÍJ.S.C. § 2254(a). We reverse. I. The Facts. The relevant facts are these: In 1971, in the Superior Court of Washington for King County, Rose pled guilty to two separate charges of grand larceny. He was sentenced to three and five years of probation with certain conditions attached, under Washington’s deferred sentencing law, R.C.W. 9.95.210 and 220. In 1973, Rose was arrested for robbery and the use of narcotics, but no charges were brought against him for those allegations. Instead, on April 25, 1973, because of this arrest, a combined probation revocation and sentencing hearing was held concerning the two larceny convictions. Rose’s probation was revoked and he was sentenced in each case to the custody of the Department of Social and Health Services for a maximum of fifteen years, the sentences to run concurrently. Rose began serving these sentences and was paroled on June 25, 1975. On March 26, 1976, Rose was convicted, in Federal court, on a narcotics charge, and sentenced to a United States penitentiary. On April 12, 1976, the Washington state court revoked his parole because he had been convicted on the Federal charge. However, at the time of the proceedings below, Rose was still incarcerated in a United States penitentiary, serving his federal sentences imposed on March 26, 1976. Washington treats his state' sentences as being interrupted by his federal incarceration; they will begin to run again when he is released from the federal penitentiary and again imprisoned by the State. In his habeas corpus petition, Rose challenges the constitutionality of the April 25, 1973 probation revocation and sentencing proceeding. We express no opinion on the merits of this challenge. II. The Law. In Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, the Court held that a prisoner may challenge a future sentence that he is not yet serving, 391 U.S. at 67, 88 S.Ct. at 1556. Since that holding, the Court has emphasized that “habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases.” Preiser v. Rodriguez, 1973, 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439. A state detainer warrant against a federal prisoner is sufficient “custody” to confer habeas corpus jurisdiction. See Braden v. 30th Judicial Circuit of Kentucky, 1973, 410 U.S. 484, 488-489, 93 S.Ct. 1123, 1126, 35 L.Ed.2d 443; Estelle v. Dorrough, 1975, 420 U.S. 534, 536, n.2, 95 S.Ct. 1173, 1175, n.2, 43 L.Ed.2d 377. The Court has also held that a person who has been paroled and remains under the control of a parole board may nevertheless challenge his state sentence in a federal habeas corpus proceeding provided that he has exhausted all state court remedies, as Rose has done here. Jones v. Cunningham, 1963, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. See, also, Gagnon v. Scarpelli, 1973, 411 U.S. 778, 780, 93 S.Ct. 1756, 1758, 36 L.Ed.2d 583; Eskridge v. Rhay, 9 Cir., 1965, 345 F.2d 778, 779, n.1. The decision of the district court that Rose is insufficiently in custody to bring a habeas corpus petition is incorrect for two reasons. Under the holding in Jones v. Cunningham, supra, the facts that Rose was paroled in 1975 and that his parole was revoked in 1976, do not affect his ability to challenge the constitutionality of the 1973 proceedings leading to the imposition of his sentence. Both the parole and its revocation rest upon the 1973 sentence. Under the holdings of Braden and Estelle, supra, a detainer in the form of a communication from the Washington State Board of Prison Terms and Paroles requesting that it be notified before Rose was to be released from federal custody so that it could retake Rose and require him to begin serving the balance of his sentences (C.T.69), is sufficient “custody” to allow a habeas corpus action. To say that Rose’s present state “custody” is based on his federal narcotics conviction rather than his state offenses is clearly wrong. Reversed and remanded for further proceedings. 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_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. ACKERSON v. UNITED STATES. No. 14161. United States Court of Appeals Eighth Circuit. Dec. 15, 1950. J. M. Willemin, Jonesboro, Ark., for appellant James T. Gooch, U. S. Atty., G. D. Walker, and W. H. Gregory, Asst. U. S. Atty., all of Little Rock, Ark., for appellee. Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges. GARDNER, Chief. Judge. This appeal is from a judgment of conviction on a charge that defendant “did knowingly, -wilfully and unlawfully transport and cause to be transported and aid and assist in the transportation of a motor vehicle in interstate commerce * * * then and there well knowing said motor vehicle to have been stolen,” in violation of Section 408, Title 18 U.S.C.A., now Section 2312, Title 18, U.S.C.A. The pertinent part of the statute reads as follows: “ * * * Whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both.” The indictment charged defendant with the transportation of a 1940 Chevrolet sedan motor car from Paragould, Greene County, Arkansas, to the City of Memphis, in the State of Tennessee, well knowing said car to have been stolen, the car being the property of one C. M. Faulkner, of Paragould, Arkansas. Shortly before the transaction here involved, C. M. Faulkner purchased, in Los Angeles, California, the Chevrolet automobile described in the indictment for the sum of $1,000. On the 28th of July, 1948, he was approached by defendant regarding the sale of the car. After some negotiations with reference to the price of the car the owner agreed to sell to defendant for $1200. Defendant agreed to purchase the car for this sum but stated that he did not have that much money in cash but that if Mr. Faulkner would deliver the car to Woodlawn, Illinois, defendant would pay him $1200 in cash, or in the alternative he would give him a check for the amount of the purchase price. Defendant assured Faulkner that, “The money is there, the check is good.” Faulkner testified that, “We agreed that he would give me the check and I wouldn’t give him any papers, any title, anything, and I told him my title hadn’t yet come in from California.” To this defendant replied that all he wanted was a bill of sale. Faulkner then said that he could give a bill of sale and attach it to the check but that he could not attach title, but that as soon as it arrived from California he would mail the title. The check was later forwarded with bill of sale attached but was not paid because defendant had no funds in the bank on which the check was drawn. Mr. Faulkner then went to DuQuoin, Illinois, where the bank on which the check was drawn was located, and where the defendant resided. He was, however, unable to find the defendant but later located the car in the possession of a man at Memphis, Tennessee. On cross-examination defendant testified that he sold the automobile at an auction sale in Mississippi. Faulkner had never received any money on the check. He testified that at the time of the agreed sale of the car he delivered possession to the defendant and gave him the keys to the car. He was then interrogated on cross-examination and answered as follows: “Q. You never expected to see the car again when he drove it off? A. Well, I didn’t think nothing about it, whether I would ever see it again or not. “Q. Answer that question. The day he drove it off you never expected to see the car again, did you? A. I wouldn’t say I didn’t never expect to see it. “Q. Did you or did you not? A. As far as the sale was concerned, I didn’t ever expect to see it again. “Q. You thought the sale was made, completed, and done with? A. Yes. “Q. You never expected to have the car in your possession again? A. Well, I don’t hardly know how to answer that “expecting/ I didn’t get my money. “Q. I am talking about what happened on the 28th of July, not what happened later on. But that day the sale was final and complete, as far as you were concerned? A. As far as giving a check for anything, yes. “Q. And you never expected to see the car or have it in your possession again? A. I wouldn’t exactly say that because I didn’t know yet whether the check was any good or not. “Q. Did you ever expect to exercise any further control over the car while it was in Mr. Ackerson’s possession? A. I did after I found out the check wasn’t any good. “Q. We are talking about what happened on the 28th of July, Mr. Faulkner, and that is what this prosecution is based on, not what happened later. On the 28th of July the sale, was final and complete? A. Yes. We made the sale that day. “Q. And you never expected to control the movements of that car again? A. Well, I wouldn’t say that I did. “Q. You did not expect to then, did you? A. I didn’t give it any thought one way or the other. “Q. Mr. Ackerson as of the day he drove the automobile away was under no obligation to you in handling the car, was he? A. Well, he didn’t have any papers with the car, as far as the ownership and all. He had nothing to show it was his. “Q. Didn’t you sell him the car? A. Yes. “Q. Didn’t you know he was going to take it? A. Yes, I figured he was going to take the car. “Q. Didn’t he tell you he was going to Illinois in the car ? A. He didn’t say exactly that was where he was going at that time. “Q. Didn’t he tell you he was going to sell the car? A. No. He didn’t tell me he was going to sell it.” The witness also testified: “Q. * * * If he had told you he was going to sell that car before he got back home, would you have objected? A. Yes, I would have. “Q. Why? A. Because it wasn’t lawfully his car. “Q. But you sold it to him, didn’t you?. A. Considering his check was good, yes. “Q. Did you doubt his check? A. No, I didn’t at the time.” The check was drawn on a bank in which defendant had no funds and never had had any funds. Neither did he at any time after issuing the check place any money in the bank for the purpose of paying the check when it was presented. When he sold the car he gave his own address as Dyersburg, Tennessee, which was not his correct address and never had been. There was evidence that defendant placed $1200 in the hands of the sheriff of the county in which he lived in Illinois, with directions to the sheriff to make payment if and when Faulkner might make demand. There was no claim that Faulkner had any notice of this alleged deposit with the sheriff, and defendant must be presumed to have known that the check would in due course be presented to the bank on which it was drawn and not to the sheriff or anyone else, and it was in fact so presented. There was other testimony but in our view of the issues presented it is not material. At the close of the government’s case and again at the close of the evidence defendant moved for a judgment of acquittal which was denied and the case was submitted to the jury on instructions to which defendant saved certain exceptions. The defendant in seeking reversal contends that the court erred (1) in denying his motion for judgment of acquittal made at the close of all the testimony and (2) in refusing to give certain instructions requested by defendant and in the giving of certain instructions. It is argued by defendant that the evidence was insufficient to prove the offense charged because the proof failed to show that the property transported was stolen property. The gist of the offense was the alleged transportation in interstate commerce. The statute does not purport to punish for larceny but for the transportation in interstate commerce of stolen property. As the statute does not define larceny it must be assumed that Congress had in mind larceny as defined by the common law. We are therefore not at liberty to resort to the special statute of the State of Arkansas which includes in the crime of larceny the offense of obtaining personal property by false pretenses. At common law larceny may be said to consist in “the felonious taking by trespass and carrying away by any person of the goods or things personal of another from any place, without the latter’s consent, and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker’s own use.” 32 Am.Juris., Sec. 2, p. 893. It is the contention of the defendant that he secured possession of the automobile with the consent of the owner and that the owner not only parted with possession but with title and that while he may have obtained possession of the property by means of false pretenses, he did not commit larceny in obtaining it. The distinction between obtaining property by false pretenses and by means of larceny is sometimes difficult to define. If it was the intention of the owner not to part with his ownership of the property when relinquishing possession of it, then the offense is larceny. We have held in Stewart v. United States, 8 Cir., 151 F.2d 386, that where the defendant secured possession of the property by trick, fraud or artifice, the owner still meaning to retain title, the taking by such means with felonious intent amounts to larceny. If, however, the owner parts not only with the possession of the property but with the title as well, the offense is not larceny but the crime of obtaining goods by false pretenses. It is therefore of primary importance in the instant case to determine whether Faulkner, in parting with possession of the automobile, intended to part with his title as well. Hite v. United States, 10 Cir., 168 F.2d 973; Loney v. United States, 10 Cir., 151 F.2d 1; United States v. Patton, 3 Cir., 120 F.2d 73; Haley v. State, 49 Ark. 147, 4 S.W. 746; United States v. Mangus, D.C., 33 F.Supp. 596. If he did intend to part with the title then the car was not a stolen car. In Loney v. United States, supra, the court was confronted with a somewhat similar situation and in the course of the opinion in that case it is said: “Where a person intending to steal another’s personal property obtains possession of it, although by or with the consent of the owner, by means of fraud or through a fraudulent trick or device, and feloniously converts it pursuant to such intent, the owner will be regarded as having retained constructive possession. Hence, in such cases the conversion constitutes a trespass. “The foregoing rule is not applicable where the owner, although induced by fraud, intends to and does part voluntarily with his title to the property, as well as his possession thereof, not expecting the property to be returned to him or to be disposed of in accordance with his directions.” [151 F.2d 4.] We think this is a correct statement of the applicable law. Viewing the evidence, as we must, in a light most favorable to the Government, we do not believe it was error in the court to deny the motion for acquittal. It was not such as to require the court to decide as a matter of law that the automobile was delivered to the defendant with intent on the part of its owner to part with title. Defendant requested the court to instruct the jury as follows: “The jury is instructed that in order for you to find the defendant guilty as charged in the indictment, you must first find that the car involved herein was stolen. You are told that larceny is synonymous with the word ‘steal’. Larceny or stealing is defined as ‘the felonious taking or carrying away of the property of another, without the owner’s consent and against his will, and with the intent of depriving the true owner of his property.’ Therefore, if you find in this case that there was a sale of the car by Faulkner to Ackerson and that Faulkner voluntarily parted with possession of the automobile, not expecting it to be returned to him or disposed of in accordance with his directions, then your verdict should be for the defendant, or a verdict of not guilty. * * This requested instruction was denied. The question, we think, is also raised by an exception to one of the court’s instructions, designated in the record as instruction No. 5. This instruction reads in part as follows: “ * * * the court instructs you that if you find from the evidence beyond a reasonable doubt the defendant bought or pretended to buy this car from the true owner and gave him a check therefor and instructed him how to present it for payment and that the defendant then knew or had cause to know, or intended that the check would not be paid upon presentation and at that time or at the time he transported this car in interstate commerce, he intended to convert the car to his own use or to deprive the true owner of its lawful possession, then you are told that in this case that would constitute larceny and the car would be a stolen car. In order for you to find that it was a stolen car and that it was obtained by larceny, you must find, beyond a reasonable doubt, that the giving of the check, the instructions as to its presentation for payment made by the defendant, with the knowledge or intent that it would not be paid •when -so presented, that is that his conduct in giving the check and instructions was a false and fraudulent trick or device to secure the possession of the car. If you do so find, that would make his taking of the car a wrongful taking, would constitute larceny. This is so even though it appeared to be a bona fide transaction on its face. * * * ” The defendant objected to this instruction for the reason that the defendant if guilty of any crime in giving the check was guilty of obtaining property by false pretenses, and the giving of the check in payment of the car did not constitute the crime of larceny by trick or device, the owner having voluntarily parted with title. The court manifestly assumed that the case was governed by what was said by us in Stewart v. United States, supra, but the facts in the two cases are quite different. In the Stewart case there was no evidence tending to show that the owner of the property intended at the time he parted with possession also to part with his title, nor was there any claim that the defendant purchased the property. In the instant case we do not think the defendant was entitled to a judgment of acquittal on his motion interposed because the evidence which we have set out in some detail, so far as it affects the issue, presented a jury question. That question, we think, was whether or not Faulkner delivered the car to the defendant with intent to part with title. If Faulkner intended voluntarily to part with his title, as well as his possession, not expecting the property to be returned to him or to be disposed of in accordance with his directions, then the car was not a stolen car even though Faulkner was induced to part with the title through the fraud and misrepresentation of the defendant. Such fraudulent acts, though manifestly criminal, t constituted some other crime than that of common law larceny. 32 Am.Juris, Sec. 30, pp. 918-919. The judgment appealed from is therefore reversed with directions to grant defendant a new trial. 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	G	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. Paul HUTCHINSON, Appellant, v. UNIVERSAL MATCH CORPORATION. No. 12849. Circuit Court of Appeals, Eighth Circuit. July 13, 1944. Fred M. Saigh, Jr., of St. Louis, Mo., for appellant. Alfred W. Petchaft, of St. Louis, Mo., for appellee. PER CURIAM. Appeal from District Court, 52 F.Supp. 866, dismissed at costs of appellant but without taxation of costs in favor of either of the parties in this Court, on stipulation of parties. 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_genapel1	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 is to determine the nature of the first listed appellant. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W.A.D. RENTALS LIMITED d/b/a Kelly’s Private Car Service, Respondent. No. 442, Docket 90-4062. United States Court of Appeals, Second Circuit. Argued Oct. 1, 1990. Decided Nov. 27, 1990. Stuart M. Kirshenbaum, Mineóla, N.Y., for respondent W.A.D. Rentals, Inc. Margaret G. Bezou, Washington, D.C. (Peter Winkler, Supervisory Atty., Jerry M. Hunter, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., of .counsel), for petitioner N.L.R.B. Before CARDAMONE and MINER, Circuit Judges, and POLLACK, District Judge . Hon. Milton Pollack, Senior Judge, United States District Court for the Southern District of New York, sitting by designation. CARDAMONE, Circuit Judge: We have a petition for enforcement by the National Labor Relations Board (Board) of its decision and order dated June 9, 1988, reported at 289 N.L.R.B. No. 9. The Board found that respondent W.A.D. Rentals, Limited, d/b/a Kelly’s Private Car Service, violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (5) (Act), and required it to cease and desist from unfair labor practices, more specifically to recognize and bargain with the union, and to post a remedial notice. Respondent’s principal argument is that there has been inordinate delay, in the first instance, on the union’s part in filing charges and, in the second instance, on the Board’s part in petitioning for enforcement. In the meanwhile, respondent says, a high employee turnover rate in its business has left few of the original employees now on its payroll that voted nine years ago for union representation. We have no doubt, as has often been observed, that procrastination is the thief of time. In this case, the union and the Board share slightly in the blame, but the chief culprit in our view is the employer, which first stalled and then later engaged in lengthy litigation thereby causing the delay of which it now complains. I Respondent operates a taxi service providing passenger service to and from the Long Island Railroad Station in Bayside, Queens, New York. Its drivers may not accept street fares. Instead fares are obtained by telephone calls from customers or from passengers picked up at the railroad station. The charges in this case were filed five years ago on July 2, 1985 by Local 3036, Taxi Drivers and Allied Workers Union, Service Employees International Union, AFL-CIO-CLC. Local 3036 began organizing respondent’s drivers in 1980 and executed a Stipulation for Certification upon Consent Election on December 15, 1980, which was followed by an election on January 9, 1981 that resulted in a 15-14 vote in favor of the union. About a year later, in February 1982, the Regional Director certified Local 3036 as the bargaining representative of the company’s employees. A number of negotiating sessions were held over the next several years but no collective bargaining agreement was signed. An earlier unfair labor practice charge brought against the respondent company was dismissed by the Regional Director in 1984 because the union had failed to prepare and submit to respondent a draft agreement. Testimony before the Administrative Law Judge (AU) in the instant case regarding the delay in reaching a meeting of the minds on the terms of a collective bargaining agreement revealed that numerous telephone calls made in 1983 and in 1984 by union representatives to respondent’s lawyer were not returned for one reason or another. The AU credited the union’s substantially uncontradicted testimony on this issue. Meanwhile, between 1981 and 1985 the company had an employee turnover of 500 percent — a rate characteristic of the industry — so that by the time the AU held the hearing on the present unfair labor charges, only three of the employees who had originally voted on union representation remained with the company. The AU determined that the parties had never come to a meeting of the minds on a collective bargaining agreement, but that the company had a continuing obligation to negotiate with the union. He rejected respondent’s claims that because the Local did not represent a majority of the employees it was no longer the employees’ bargaining representative, as well as its further claim that because of the passage of time and the employee turnover rate, the company was entitled to have a good faith doubt as to the union’s majority status. Instead, the AU found the company violated §§ 8(a)(1) and (5) of the Act by withdrawing recognition from Local 3036 and by refusing to bargain with it in good faith. In his recommended order, the hearing officer required the company to cease and desist from such unfair labor practices, from interfering with or coercing employees in the exercise of their rights to conduct union activity, to post a remedial notice, and to bargain with the union. The Board summarily approved the AU’s decision and order on June 9, 1988 and — as the company has since refused to bargain with the union — now petitions for enforcement of its order. II We discuss first respondent’s contention that the union and then the Board were guilty of such delay as to render the Board’s direction to engage in collective bargaining moot. Focusing on the lapse of time between the activities that are the subject of the complaint of unfair labor practices and the remedy granted, none of the delay prior to the earlier July 1985 filing by the Local of an unfair labor practice charge may be ascribed to delay on the part of the union. With respect to the period from its certification in 1981 until it filed charges in July 1985, there is substantial evidence in the record viewed as a whole to support a finding that Local 3036 neither knew nor could have known of the employer’s refusal to bargain because it had an ongoing bargaining relationship with the employer. With respect to the subsequent period, the record shows that the unfair labor practice charge now before us was filed on July 2, 1985 and, after investigation, the Regional Director issued a complaint and notice of hearing on September 16. On September 25, the company filed an answer denying the complaint’s allegations and moved on December 30 for summary judgment. On April 9, 1986, the Board denied the motion, and hearings were held in July 1986. On April 28, 1987, after the parties had filed briefs, the AU issued its 51-page recommended decision, which the Board adopted on June 9, 1988. The company then advised the Regional Office that it would comply and posted the remedial notice. Only later, after further investigation, did the Regional Office conclude that the employer was in fact continuing to engage in dilatory tactics and persisting in its unlawful refusal to bargain. As a result, the case was referred for enforcement in May 1989. This recitation demonstrates that the company vigorously litigated this case at every stage, and it was on account of its tactics that the initiation of the instant enforcement proceeding was delayed. Hence, the processing of this case, though time consuming, has not been marked by undue delay. The June 9, 1988 order of the N.L.R.B. is enforceable, notwithstanding the passage of time and the employee turnover rate since the company’s purported withdrawal of recognition from the union. The respondent appeals essentially to our equitable powers, since the National Labor Relations Act contains no time limit for the enforcement of the Board’s orders. See N.L.R.B. v. Katz, 369 U.S. 736, 748 n. 16, 82 S.Ct. 1107, 1114 n. 16, 8 L.Ed.2d 230 (1962); Continental Web Press, Inc. v. N.L.R.B., 742 F.2d 1087, 1095 (7th Cir.1984). Although we have the power to deny enforcement where it is unnecessary or futile, see Emhart Industries v. N.L.R.B., 907 F.2d 372, 378-80 (2d Cir.1990); N.L.R.B. v. Maywood Plant of Grede Plastics, 628 F.2d 1, 7 (D.C.Cir.1980), the purposes that the Act was enacted to serve argue against denying enforcement in this case. Ill We consider next the 500 percent employee turnover. During the year following its certification, a union enjoys a conclusive presumption of majority employee support and, thereafter, it enjoys a re-buttable presumption of such support. See Brooks v. N.L.R.B., 348 U.S. 96, 104, 75 S.Ct. 176, 181, 99 L.Ed. 125 (1954); N.L.R.B. v. Aquabrom, Div. of Great Lakes Chem. Corp., 855 F.2d 1174, 1183 (6th Cir.), amended on other grounds, 862 F.2d 100 (1988). The policy behind the presumption of continuing majority support not only allows time for the bargaining process to work, see Franks Bros. Co. v. N.L.R.B., 321 U.S. 702, 705, 64 S.Ct. 817, 819, 88 L.Ed. 1020 (1944), but, in addition, insisting on continued majority employee support, in an industry — such as the private car rental service — where there is a high employee turnover rate, would encourage an employer to commit unfair labor practices. An employer not anxious, for example, to have its employees organized would quickly realize that employee turnover would work in its favor, so that after the passage of time the only remedy available upon complaint of an unfair labor practice would be a cease and desist order and a new election. By playing a waiting game, the employer could indefinitely postpone serious bargaining with the union. See Chromalloy Mining & Mineral's Alaska Div., Chromalloy American Corp. v. N.L.R.B., 620 F.2d 1120, 1132 (5th Cir.1980). Where such tactics are shown, as we believe they are in the instant record, they should not be countenanced. We recognized these policy considerations in refusing to require a new election when there had been some employee turnover between a union’s selection by the employees and the Board’s petition for enforcement of a bargaining order. See N.L.R.B. v. Patent Trader, Inc., 426 F.2d 791, 792 (2d Cir.1970) (in banc). To allow an employer first to stall and then to engage in lengthy litigation and later to claim that in the meantime its high employee turnover rate has effectively left none of the employees on its payroll who originally voted for the union, would give employers an incentive to use such tactics. Providing such an incentive would serve only to encourage the commission of unfair labor practices. See Glomac Plastics, Inc. v. N.L.R.B., 592 F.2d 94, 101-02 (2d Cir.1979); N.L.R.B. v. All Brand Printing Corp., 594 F.2d 926, 931 (2d Cir.1979). CONCLUSION Although the administrative delay in petitioning for enforcement is regrettable, the appropriate remedy is to allow the employees, if they are so advised, to petition for decertification, not to require another election, particularly when union recognition originated through an election. See N.L.R.B. v. Koenig Iron Works, Inc., 856 F.2d 1, 2-3 (2d Cir.1988). Enforcement of the Board’s order is accordingly granted. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_state	39	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". PAAC as a Commission and Individually et al. v. Frank L. RIZZO, Mayor of the City of Philadelphia and as an individual, et al. D. C. Civil No. 73-957) CITY OF PHILADELPHIA v. Melvin L. HARDY and Isaiah Crippins. (D. C. Civil No. 73-990) No. 73-1914. United States Court of Appeals, Third Circuit. Argued April 2, 1974. Decided June 14, 1974. Donald E. Matusow, S. Gerald Litvin, Philadelphia, Pa., for appellants PAAC and Melvin Hardy. John Mattioni, Deputy City Solicitor, Martin Weinberg, City Solicitor, Philadelphia, Pa., for appellees. Before VAN DUSEN, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge. We are called upon to resolve a conflict between the Mayor of Philadelphia, the Honorable Frank Rizzo, and the Philadelphia Anti-Poverty Action Commission (“PAAC”). For reasons other than those articulated by the district court, we conclude that it was proper for the court to refuse the relief sought against Mayor Rizzo. Melvin Hardy (a former Executive Director of PAAC), Isaiah Crippins (a former General Counsel of PAAC), and PAAC commenced this action in the District Court for the Eastern District of Pennsylvania on April 27, 1973. Their complaint includes a variety of claims concerning the alleged interference of Mayor Rizzo with the functioning of the anti-poverty agency. By far the most prominent of these claims is the charge that the Mayor violated federal law by removing Melvin Hardy as the Executive Director of PAAC and by refusing to renew Mr. Crippins’ contract as General Counsel. Less precise, but still present in the complaint, are charges that: (1) the Mayor illegally blocked appointments to PAAC made by its Executive Director; (2) the Mayor appointed persons to the PAAC Board illegally; (3) the Mayor convened PAAC meetings illegally; and (4) the Mayor defamed each of the plaintiffs. The complaint seeks declaratory and injunc-tive relief, as well as compensatory and punitive damages. Four days after the above action was commenced, the City of Philadelphia instituted an action in state court against Hardy and Crippins, seeking to restrain the defendants from exercising their duties as Executive Director and General Counsel of PAAC. On May 3, 1973, Melvin Hardy and Isaiah Crippins removed the City’s action to the District Court for the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1441. Perceiving a close similarity between the two actions, the district court then consolidated the original action brought by PAAC, Hardy and Crippins (District Court No. 73-957) with the City’s removed action (District Court No. 73-990). On May 10, 1973, the court conducted a one day hearing on the merits of the consolidated case. After the hearing, the City moved for dismissal of No. 73-957 and for remand of No. 73-990 on the grounds of lack of subject matter jurisdiction. These motions were denied sub silentio by the district court. In a memorandum opinion, the district court found that: (1) subject matter jurisdiction exists (pursuant to 28 U.S.C. § 1831) for the district court to consider all matters raised in the consolidated actions; and (2) federal law permits the Mayor to remove PAAC’s Executive Director and to refuse to renew the contract of PAAC’s General Counsel. With regard to the peripheral matters raised in PAAC’s original complaint, the Court stated: We have not considered the myriad of other allegations and issues raised in the pleadings for the following reasons: (a) no evidence was presented at the hearing in connection therewith; (b) these matters were not briefed by the parties; and (e) in view of the issues decided herein, the other allegations and issues raised in the pleadings now appear moot. Judgment was thereupon entered in favor of the defendants in No. 73-957 and in favor of the plaintiff in No. 73-990. PAAC and Hardy appeal pursuant to 28 U.S.C. § 1291. I. Background To understand the district court’s primary conclusions, it is necessary to trace briefly the history of relevant anti-poverty legislation. As part of the Economic Opportunity Act of 1964, Congress established a Community Action Program. This Program encouraged the development of local agencies to provide multiple services to impoverished communities. Originally, the Program envisioned as a goal the “maximum feasible” participation of the poor in the development of Community Action Programs. By 1967, however, Congress recognized that the Community Action Program could not succeed without the support of locally elected officials. See 1967 U.S. Code, Congressional & Administrative News at 2448-49 (excerpted from House Report No. 866, 90th Cong., 1st Sess. 1967). On December 23, 1967, Congress enacted the Green Amendments to the Economic Opportunity Act of 1964. These Amendments gave flexibility to the Community Action Program, permitting localities a choice in the type of “community action agency” that would qualify for federal funding. Under the Green Amendments, the agency may either be a “State or political subdivision of a State (having elected or duly appointed governing officials), or a combination of such political subdivisions” or it may be a “public or private non-profit agency or organization which has been designated by a State or such a political subdivision or combination of such subdivisions.” 42 U.S.C. § 2790(a). The former administers its program through a community action board, while the latter administers its program through a governing board. 42 U.S.C. § 2791(a). The Economic Opportunity Act is somewhat imprecise with regard to the distinctions between the two types of boards. A governing board has the power to “appoint persons to senior staff positions, to determine major personnel, fiscal, and program policies, to approve overall program plans and priorities, and to assure compliance with conditions of and approve proposals for financial assistance under this subchapter.” 42 U.S.C. § 2791(e). The parallel powers of a community action board, on the other hand, are not made explicit by the statute. The Office of Economic Opportunity, however, has explained that in jurisdictions with community action boards, the “governing officials” will exercise the same powers that governing boards exercise, unless the officials delegate these powers to the community action boards. OEO Community Action Program Memorandum No. 81 at 5. In determining whether PAAC or Mayor Rizzo had the authority to remove Hardy, the district court focused upon the fact that the appointive powers of community action agencies differ, depending upon whether the agency is administered by a governing board (lodging the appointive powers in the board itself) or by a community action board (lodging the appointive powers in governing officials). The court thus posed as determinative the issue as to whether PAAC “is a political subdivision of the City of Philadelphia administered by a ‘community action board’ or whether it is a public or private non-private agency administered by a ‘governing board.’ ” To resolve this issue, the district court examined the history of the Philadelphia Anti-Poverty Action Commission. As the court found, PAAC was created on February 22, 1965 by the Executive Order of former Mayor James H. Tate. According to the uncontra-dicted testimony of appellant’s witnesses, PAAC was (from 1965 to 1967) the only community action institution in the country that existed solely by virtue of an Executive Order. To mollify demands from Washington, a blue ribbon panel was formed to develop permanent legislation. As a result of the panel’s efforts, the Philadelphia City Council adopted Bill No. 2846 on December 27, 1967. This Ordinance, appearing as Title 21-800 of the Philadelphia Code, provides, in pertinent part, that: (1) Creation of Commission. The Philadelphia Anti-Poverty Action Commission is hereby created. It shall be composed of an uneven number of members, not less than 31 nor more than 45 in number. All of the members of the Commission shall serve without compensation. The initial number of members of the Commission shall be 38 members and there shall be no change in the number of members of the Commission at any time unless two-thirds of the members appointed to the Board approve the change in membership. The members of the Commission shall select a chairman from among themselves. The term for which any member of the Commission shall serve shall be for a period of one year and until their successors are appointed, and qualify. (2) Appointment of Members. The Members of the Commission shall be appointed by the Mayor. [The ordinance then recommends that the May- or appoint specific officials as members.] * * * * * * (3) The Mayor shall select an Executive Director from among a panel of 3 persons whose names are submitted to the Mayor by the Commission. The Mayor shall be at liberty to request the Commission to present to the Mayor additional panels of 3 persons from which he may select an Executive Director. The request of the Mayor for additional panels shall not preclude him from selecting a name from among the prior panels. * * * * * * (5) Powers and Duties. The Commission shall have the following powers and duties: (a) To conduct, administer and coordinate Federal anti-poverty programs in Philadelphia; (b) To mobilize the resources of the City of Philadelphia and its residents to combat poverty through a community action program; (c) To mobilize and utilize resources, public and private, in an attack on poverty; (d) To provide services, assistance and other activities of sufficient scope and size to give promise of progress through elimination of poverty or a cause or causes of poverty through developing employment opportunities, improving human performance, motivation, productivity or bettering conditions under which people live, learn and work; (e) To carry out a community action program which is developed, conducted and administered with the maximum feasible participation of residents of the areas and members of the groups served; (f) To cooperate with federal, state and local governments and their agencies and representatives in every way possible in the conduct, administration and coordination of a community action program ; (g) To act as an agency of the City of Philadelphia for any and all of the purposes set forth herein; and (h) To receive, expend and account for funds, property and services supplied by federal, state or local governments, or by others, and in every way possible to further the purposes of the Commission. The district court concluded from the Executive Order and City Ordinance that “PAAC is an agency of the City, administered by a ‘community action board,’ rather than a non-profit organization administered by a ‘governing board.’ ” Having found that PAAC is an agency of the City, the court considered itself bound by federal law to hold that the appointive power lies with the governing official, Mayor Rizzo. Looking to state law, the court noted that the removal power tracks the appointive power. Accordingly, the court held that it was proper for the Mayor to remove Melvin Hardy from office. II. Jurisdiction Before evaluating the reasoning of the district court (as outlined above), we find it necessary to discuss, as a threshold issue, the subject matter jurisdiction of the district court. We shall analyze the court’s conclusion that jurisdiction vested (to consider all claims raised herein) by treating separately (1) the claim that Mayor Rizzo could not remove Hardy, (2) the peripheral claims raised by PAAC in 73-957, and (3) the removed claims. A. No. 73-957: The Primary Claim We agree with the district court that jurisdiction exists under 28 U.S.C. § 1331 to consider Hardy’s claim that he was illegally discharged. To confer original jurisdiction upon a district court pursuant to 28 U. S.C. § 1331, the complainant must assert a claim founded directly upon federal law. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936); Cabana Management, Inc. v. Hyatt Corp., 441 F.2d 862, 864 (5th Cir. 1971). The federal right asserted “must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Gully v. First National Bank, supra, 299 U.S. at 112. Furthermore, the claim must be essential to plaintiff’s cause of action, Warrington Sewer Co. v. Tracy, 463 F.2d 771, 772 (3d Cir. 1972) (per curiam), and must raise a substantial federal question, Hagans v. Lavine, 415 U.S. 528, 534-542, 94 S.Ct. 1372, 39 L.Ed.2d 577, (1974). For the claim to be substantial, it need not be one that will ultimately succeed on the merits. See, e. g. Lewis v. American Federation of State, County, and Municipal Employees, AFL-CIO, 407 F.2d 1185, 1188, n.3 (3d Cir.), cert. denied, 396 U.S. 866, 90 S.Ct. 145, 24 L.Ed.2d 120 (1969). Provided that the federal claim is material (and not raised solely for the purposes of obtaining jurisdiction) and is not rendered frivolous by prior case law, a federal question will exist for purposes of 28 U. S.C. § 1331. See Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946). In the action filed as No. 73-957, PAAC and Hardy argue that the Economic Opportunity Act (42 U.S.C. § 2701 et seq.) and regulations promulgated in furtherance thereof preclude May- or Rizzo from removing PAAC’s Executive Director. Specifically, they contend: (1) that as a condition to recognition of PAAC as a grantee agency, the Office of Economic Opportunity (OEO) required that the removal power remain within PAAC, and (2) that local law cannot supersede terms imposed by the OEO pursuant to federal law. In essence, they claim that Mayor Rizzo’s removal of Hardy contravened the Supremacy Clause of the United States Constitution by subordinating a Congressional mandate to local law. We find that such a claim satisfies all the requisites of a substantial federal question. Essential to plaintiff-appellants’ ease is the claim that federal law (namely, the Economic Opportunity Act) precludes Mayor Rizzo from removing Hardy from office. If we read the Act as PAAC and Hardy would have us read it, we might well be compelled to conclude that the Mayor is without authority to remove Hardy; if, on the other hand, we interpret the Act as irrelevant to the issue of Hardy’s removal, we could reach the opposite result. We have been cited to no case law that renders the claim frivolous. Since there is no doubt but that the $10,000 amount in controversy requirement is satisfied, we conclude (as did the district court) that jurisdiction vests pursuant to 28 U.S.C. § 1331 to consider the legitimacy of Hardy’s discharge. B. No. 73-957: The Peripheral Claims As discussed above, the complaint in No. 73-957 charges that the Mayor: (1) illegally blocked appointments to PAAC, (2) illegally appointed persons to PAAC, (3) convened PAAC meetings, and (4) defamed the plaintiffs. With regard to the first three peripheral claims, the theory of illegality is based upon the argument that federal law (namely the Economic Opportunity Act and regulations promulgated in response thereto) prohibits the actions taken by the Mayor. For the reasons discussed above, we find that these claims too raise a substantial federal question. We cannot, however, find an independent jurisdictional basis for plaintiffs’ defamation claim. If the district court was correct in exercising jurisdiction of this claim, it could only be so as a result of the court’s power to exercise pendent jurisdiction over state claims related to legitimate federal claims. In United Mine Workers of America v. Gibbs, the Supreme Court analyzed this power as follows: Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority .,’ U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103 [, 53 S.Ct. 549, 77 L.Ed. 1062]. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole, (footnotes omitted). See also Deaktor v. Fox Grocery Co., 475 F.2d 1112, 1115-1116, n.2 (3d Cir.), cert. denied, 414 U.S. 867, 94 S.Ct. 65, 38 L.Ed.2d 86 (1973). We find that the defamation claim is factually distinct from the claims involving Mayor Rizzo’s interference with the operation of PAAC. The defamation claim does not derive from a “nucleus of operative fact” common with the federal claims. Nor is the defamation claim one which we would “ordinarily expect” to be tried with the federal claims. Accordingly, we find that the doctrine of pendent jurisdiction is unavailable to justify the district court’s consideration of the defamation claim. We hold that the court erred in exercising jurisdiction over same. C. No. 73-990: The Claim Removed from State Court The removal statute, 28 U.S.C. § 1441, generally keys removal jurisdiction to original jurisdiction. A case which originally may be brought in federal district court is generally removable upon defendant’s petition. Where, as here, removal is predicated upon the assertion of a federal question, the principles discussed above with regard to § 1331 jurisdiction are applicable to removal from state courts. See Wright, Law of Federal Courts (2d ed. 1970) at 1304. Most importantly, the federal question must appear as an essential element of the plaintiff’s complaint in state court. If the federal question arises only as a defense, or in anticipation of a defense, removal jurisdiction will not exist. See, e. g., Tennessee v. Union and Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Crow v. Wyoming Timber Products Co., 424 F.2d 93, 95 (10th Cir. 1970); Romick v. Bekins Van & Storage Co., 197 F.2d 369, 370 (5th Cir. 1952); see also Wright, Law of Federal Courts (2d ed. 1970) at 131 (“Defendant can remove a case where the plaintiff relies on federal law for his claim, though the plaintiff is perfectly willing to entrust his federal claim to a state court, but neither party can take the case to federal court where defendant sets up federal law as a defense to a non-federal claim by plaintiff.”) In the action commenced by the City of Philadelphia to restrain Hardy and Crippins from serving as PAAC’s Executive Director and General Counsel, plaintiff’s complaint is based entirely on state law. According to the complaint, the Mayor’s authority to discharge the defendants is predicated solely upon the Philadelphia Home Rule Charter. The federal question in No. 73-990 thus arises only as a defense, Hardy and Crippens asserting that federal law supersedes the Charter and precludes their discharge. Since the federal question does not appear as part of the complaint well-pleaded, the state action is not properly removable, regardless of its similarity with No. 73-957. We find that the district court erred in denying the City’s motion to remand No. 73-990. Our analysis discloses that the district court was incorrect in concluding that subject matter jurisdiction exists to consider all claims raised in the consolidated actions. We need discuss the merits of only two sets of claims, the primary assertion that federal law precludes Hardy’s discharge and the three peripheral allegations raised in PAAC’s complaint (without the defamation claim). III. The Merits A. No. 73-957: The Primary Claim Appellants assert that it was improper for the district court to focus upon the issue of whether PAAC is administered as a “governing board” or a “community action board.” They maintain that the essential structure of PAAC was developed before the adoption of the Green Amendments and has not been altered since. It is appellants’ position that early negotiations between PAAC, OEO, and the City of Philadelphia led to the creation of an independent entity whose federally-imposed autonomy cannot be undermined by local law. They assert that: In view of the fact that the Green Amendments did not change the functioning of PAAC, resolution of such questions as who possesses the power to discharge the Executive Director of PAAC must depend on the nature of the arrangements, agreements and understandings reached through negotiations conducted by OEO, PAAC and the City of Philadelphia. A community action agency must be operated in accordance with the terms and conditions attached to the grant of federal funds. Appellants’ Brief at 14. Both the district court and the appellants construe the Federal Community Action Program as being mandatory in form. The court predicated its entire opinion upon the assumption that 42 U. S.C. § 2790 requires local governments to establish agencies which are administered either by governing boards or community action boards. Appellants, likewise, assume that it is mandatory that PAAC be operated “in accordance with the terms and conditions attached to the grant of federal funds.” Were we concerned herein with the eligibility of PAAC for federal funding, we, like the district court and appellants, would regard federal law as mandatory. The instant case, however, does not center around federal funding. Rather, we are concerned with identifying the basic structure of PAAC. While the Economic Opportunity Act may strongly influence the structure ultimately developed, it is a matter for local governments to decide whether they will create poverty agencies that satisfy federal guidelines. Contrary to the assumptions made by the district court and by the appellants, there is nothing in the Economic Opportunity Act (or in the regulations promulgated in furtherance thereof) which requires localities to establish community action agencies. An agency which fails to comport with the Act’s guidelines is neither illegal nor in contravention of the Supremacy Clause. Rather, it is merely an agency that may be forced to forego federal funding. In short, the Act does not establish powers in local agencies, but rather merely describes the .powers that are prerequisites to federal funding. To determine whether the Mayor or PAAC has the authority to remove Melvin Hardy, it is necessary to examine the documents which created PAAC rather than the federal guidelines which may or may not have been followed. Section 3 of the Ordinance creating PAAC gives the Mayor the power to appoint the Executive Director. Under Pennsylvania law, the power to remove an appointed officer is lodged in the same entity that has the power to appoint. We thus agree with the district court’s conclusion that Mayor Rizzo has the authority to remove Melvin Hardy from' office. B. No. 73-957: The Peripheral Claims (other than the defamation claim) We agree with the district court that plaintiffs failed to satisfy their burden of proving the Mayor’s alleged interferences with PAAC. On the basis of the record herein, regardless of the effect of federal law, plaintiff-appellants cannot succeed on their peripheral claims. The judgment entered in favor of the defendants in District Court No. 73-957 will be affirmed with respect to all claims but the defamation claim. The judgment entered in District Court No. 73-957 with respect to the defamation claim and the judgment entered in District Court No. 73-990 will be reversed for want of subject matter jurisdiction. To effect the above dispositions, the entire case will be remanded to the district court for entry of a judgment consistent with this opinion. . It is proper for an appellate court to affirm a correct decision of a lower court even when that decision is based on an inappropriate ground. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937). . The City commenced this second action in the Court of Common Pleas of Philadelphia County. . Although Isaiah Crippins joined PAAC and Hardy in the filing of a notice of appeal, Crippins has not submitted a brief to this Court. We limit our remarks in this opinion to the appellants before us, PAAC and Hardy. As to Crippins, we dismiss his appeal for failure to prosecute. See Fed.R. App.P. 3(a) ; 9 Moore’s Federal Practice IT 203.12. . To avoid confusion, “community action boards” are sometimes referred to as “administering boards” by the Office of Economic Opportunity. . 42 U.S.C. § 2791(a) provides: Each community action agency which is a State or a political subdivision of a State, or a combination of political subdivisions, shall administer its program through a community action board which shall meet the requirements of subsection (b) of this section. Each community action agency which is a public or private nonprofit agency or organization designated by a State or political subdivision of a State, or combination of political subdivisions, or is an agency designated by the Director under section 2790(d) of this title, shall have a governing board which shall meet the requirements of subsection (b) of this section. . Generally, the term “governing official” applies to: “. . . (a) the governor and legislature of any of the 50 States, the Commonwealth of Puerto Rico, or a self-governing territory, or (b) the top elected or duly appointed officials of a local political subdivision, District of Columbia, or a non-self-governing territory, who collectively possess the power to adopt and carry out local laws or ordinances.” OEO Community Action Program Memorandum No. 81, at 2. . The Order was authorized by Section 3-100(h) of the Philadelphia Home Rule Charter, which provides that the executive and administrative functions of the City shall be performed by “such additional advisory boards as the Mayor may appoint.” . See discussion infra. . See Appellant’s Brief at 17. . Cf. People Cab Co. v. Bloom, 472 F.2d 163 (3d Cir. 1972) (per curiam); Church v. Hamilton, 444 F.2d 105 (3d Cir. 1971) (per curiam). . 383 U.S. 715, 725, 30 S.Ct. 1130, 1138,16 L.Ed.2d 218 (1900). . Indeed, Congress has recognized that jurisdictions may be unwilling to establish agencies that conform with the federal guidelines. 42 U.S.C. § 2790(d) provides that: The Director may designate and provide financial assistance to a public or private nonprofit agency as a community action agency in lieu of a community action agency designated under subsection (2) of this section for activities of the kind described in this subchapter where he determines (1) that the community action agency serving the community has failed, after having a reasonable opportunity to do so, to submit a satisfactory plan for a community action program which meets the criteria for approval set forth in this sub-chapter, or to carry out such plan in a satisfactory manner, or (2) that neither the State nor any qualified political subdivision or combination of such subdivisions is willing to be designated as the community action agency for such community or to designate a public or private nonprofit agency or organization to be so designated by the Director. . We express no opinion as to whether or not PAAC has met the requisite federal guidelines. This issue is not before us. . The Ordinance supra at 7-9 does limit this appointment power somewhat, since the Mayor is free to choose only from a list of candidates selected by PAAC. However, the Mayor’s ability to reject -these candidates ad infinitum renders the limitation negligible. . Article 6, section 7 of the Pennsylvania Constitution provides: Appointed civil officers, other than judges of the courts of record, may be removed at the pleasure of the power by which they shall have been appointed. The Philadelphia Home Rule Charter is entirely consistent with this constitutional directive, providing in § 9-200 that: “Any appointed officer may be removed at the pleasure of the appointing power.” 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_issue_9	47	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. CALIFORNIA v. TEXAS No. 76, Orig. Argued March 29, 1978 Decided June 22, 1978 Jerome B. Falk, Jr., argued the cause for plaintiff. With him on the briefs were Myron Siedorf, James R. Bimberg, and Steven L. Mayer. John L. Hill, Attorney General of Texas, argued the cause for defendant. With him on the brief were David M. Kendall, First Assistant Attorney General, Lee C. Clyburn, Administrative Assistant Attorney General, Rick Harrison, Special Assistant Attorney General, and David Deaderick and Rick Arnett, Assistant Attorneys General. Per Curiam. The motion for leave to file a bill of complaint is denied. Question: What is the issue of the decision? 01. comity: civil rights 02. comity: criminal procedure 03. comity: First Amendment 04. comity: habeas corpus 05. comity: military 06. comity: obscenity 07. comity: privacy 08. comity: miscellaneous 09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals 10. assessment of costs or damages: as part of a court order 11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules 12. judicial review of administrative agency's or administrative official's actions and procedures 13. mootness (cf. standing to sue: live dispute) 14. venue 15. no merits: writ improvidently granted 16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit 17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals) 18. no merits: adequate non-federal grounds for decision 19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law) 20. no merits: miscellaneous 21. standing to sue: adversary parties 22. standing to sue: direct injury 23. standing to sue: legal injury 24. standing to sue: personal injury 25. standing to sue: justiciable question 26. standing to sue: live dispute 27. standing to sue: parens patriae standing 28. standing to sue: statutory standing 29. standing to sue: private or implied cause of action 30. standing to sue: taxpayer's suit 31. standing to sue: miscellaneous 32. judicial administration: jurisdiction or authority of federal district courts or territorial courts 33. judicial administration: jurisdiction or authority of federal courts of appeals 34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753) 35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court 36. judicial administration: jurisdiction or authority of the Court of Claims 37. judicial administration: Supreme Court's original jurisdiction 38. judicial administration: review of non-final order 39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision) 40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question) 41. judicial administration: ancillary or pendent jurisdiction 42. judicial administration: extraordinary relief (e.g., mandamus, injunction) 43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal) 44. judicial administration: resolution of circuit conflict, or conflict between or among other courts 45. judicial administration: objection to reason for denial of certiorari or appeal 46. judicial administration: collateral estoppel or res judicata 47. judicial administration: interpleader 48. judicial administration: untimely filing 49. judicial administration: Act of State doctrine 50. judicial administration: miscellaneous 51. Supreme Court's certiorari, writ of error, or appeals jurisdiction 52. miscellaneous judicial power, especially diversity jurisdiction 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". The BELL TELEPHONE COMPANY OF PENNSYLVANIA, et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone and Telegraph Company, Telesphere Network, Inc., U.S. Telephone, Inc., Intervenors. No. 84-1259. United States Court of Appeals, District of Columbia Circuit. Argued April 17, 1985. Decided May 14, 1985. Linda L. Oliver, Counsel, F.C.C., Washington, D.C., with whom Jack D. Smith, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle and Carl D. Lawson, Counsel, F.C.C., Washington, D.C., were on brief, for respondents. William J. Byrnes, Washington, D.C., with whom Michael H. Bader, Kenneth A. Cox, Thomas R. Gibbon and Theodore D. Kramer, Washington, D.C., were on brief, for intervenor MCI Telecommunications Corp. Judith A. Maynes, New York City, Robert B. Stecher and Daniel Stark, Washington, D.C., were on brief, for intervenor American Tel. and Tel. Co. Leo I. George, Washington, D.C., entered an appearance, for intervenors Telesphere Network, Inc. and U.S. Telephone, Inc. William R. Weissman, Washington, D.C., with whom Charles A. Zielinski, A. Richard Metzger, Karen S. Byrne and Robert A. Levetown, .Washington, D.C., were on brief, for petitioner. Before MIKYA, GINSBURG and BORK, Circuit Judges. Opinion PER CURIAM. PER CURIAM. This petition for review concerns the fifth and final year of the interim agreement governing rates charged to “other common carriers” (OCCs) for exchange network facilities for interstate access (EN-FIA agreement). For background on EN-FIA and prior proceedings in this court regarding the agreement, see MCI Telecommunications Corp. v. FCC, 712 F.2d 517 (D.C.Cir.1983). The ENFIA agreement provided that American Telephone and Telegraph Company (AT & T), on behalf of the Bell System Operating Companies (BSOCs), would file annually with the Federal Communications Commission (Commission or FCC) a tariff containing the rates for the following billing year, subject to 15 days’ advance notice before the tariff became effective. For the fourth year of the ENFIA agreement scheduled to begin on May 2,1982, the FCC suspended the tariff filed by AT & T, imposed an interim billing and collection rate, and stated that the interim rate would be subject to adjustment in either direction after Commission determination of the rate properly set under the ENFIA contract. On September 29, 1982, the Commission prescribed the methodology for calculating rates under ENFIA, and ordered the OCCs to remit to the BSOCs the difference between the lower interim rate and the prescribed rate. Exchange Network Facilities for Interstate Access (ENFIA), 91 F.C.C.2d 1079, 1093-94 (1982). Using the prescribed methodology AT & T filed a new tariff which was in effect for the balance of the fourth year. Several parties petitioned the Commission for reconsideration of the September 29 order; AT & T requested expedition of the Commission’s reconsideration. The fifth year ENFIA rates were scheduled to begin April 16,1983. On March 28, 1983, while the petitions for reconsideration of the FCC’s September 29, 1982, order remained pending, AT & T filed fifth year rates based on the methodology prescribed by the September 29, 1982, order. AT & T stated in the March 28 tariff filing that the submission was made subject to later recalculation based on the Commission’s eventual — then still awaited — decision in the reconsideration proceeding. The Common Carrier Bureau permitted the fifth year rates to go into effect as scheduled. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 15, 1983). On April 5, 1983, the Commission at last issued its Reconsideration Order, and in it altered the prescribed methodology for calculation of the ENFIA rates. The revised methodology increased the fourth year rates, and the Commission approved as lawful retroactive application of the readjusted fourth year charges. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d 739, 763 (1983), aff'd mem. sub nom. GTE Sprint Communications Corp. v. FCC, 733 F.2d 966 (1984). AT & T filed tariff revisions to its fourth year rates, applicable retroactively to the beginning of the fourth year, and the tariff became effective the day after it was filed. On April 28, 1983, AT & T filed amended fifth year rates based on the methodology the Commission established as correct on April 5 in the Reconsideration Order. The tariff provided that the charges would be retroactive to the beginning of the fifth year, April 16, 1983. The Common Carrier Bureau observed that the proposed rate increase appeared to conform to the EN-FIA methodology approved in the Reconsideration Order. Nevertheless, the Bureau rejected the tariff as unlawful. According to the Bureau, the retroactive (then by less than one month) increase was prohibited by section 203(c) of the Communications Act, 47 U.S.C. § 203(c) (1982) (“[N]o carrier shall ... charge ... different compensation ... than the charges specified in the schedule then in effect.”). Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (May 16, 1983). The Commission affirmed the Bureau’s ruling. Exchange Network Facilities for Interstate Access (ENFIA), CC Docket No. 78-371 (Apr. 18, 1984). The BSOCs petition this court to review the Commission’s rejection of a retroactive increase in fifth year rates. We reverse. It is not controverted that the calculations AT & T made following the April 5, 1983, Reconsideration Order are accurate and in full conformity with the methodology ultimately prescribed by the Commission. The Bureau’s rejection of the April 28, 1983, AT & T tariff filing thus rested solely on the perception that the tariff’s retroactive component (dating the increase back to April 16 rather than forward from May 13) would violate section 203(c). However, the Commission itself had explained crisply, in its April 5 Reconsideration Order discussion of retroactive adjustment of fourth year rates, why such an adjustment is compatible with section 203(c): Because our investigation was aimed at finding the proper rate under the agreement, we see little difference between this case and City of Piqua v. FERC, 610 F.2d 950 (D.C.Cir.1979), where the enforcement of an agreed upon prior effective date for rate increases was not considered retroactive ratemaking. Furthermore, under circumstances where it is the terms of an agreement that are at issue and both sides have participated in the proceeding and have been given notice as to the actual effective date of the rate, and where any of the parties may be responsible for error, fairness dictates that a retroactive adjustment be applicable to either side. Exchange Network Facilities for Interstate Access, 93 F.C.C.2d at 763 (1983); see also Hall v. FERC, 691 F.2d 1184, 1191-92 (5th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983). We find this reasoning correct and fully applicable to the fifth year retroactive rate adjustment at issue here. The Commission attempts to distinguish the fourth year retroactive rate change from the fifth year tariff by noting that the fourth year adjustment was made initially to a Commission-imposed interim rate while the April 28, 1983, filing proposed a retroactive alteration in a previously filed tariff. This distinction is not altogether accurate and, in any event, has scant relevance to the policy or purposes of section 203(c) or the ENFIA agreement. Indeed, as petitioners point out, the FCC’s distinction would operate in a senseless manner. It would allow re-troactivity only to those who file conspicuously inappropriate rates: if the filed rates are sufficiently questionable to warrant suspension, the carrier can eventually obtain the full, fair rate retroactively; if the filing is sufficiently close to stand pending investigation, no retroactive adjustments will be made in the carrier’s favor. In sum, had the Commission corrected its September 29,1982, order in February 1983 rather than in April, AT & T would have been positioned to file a conforming tariff on March 28, 1983, the fifth year ENFIA rates would have fallen smoothly into place on April 16, and the interim agreement would have run its course without generating this parting federal court case. The Commission appropriately adjusted for the flaws in its September 29,1982, order when it ruled on retroactively effective fourth year rates. It should have followed suit in ruling on fifth year rates. Its failure to do so was capricious. Because (1) the tariff filed by AT & T on April 28, 1983, does not violate section 203(c), sensibly read; and (2) the Commission does not question the filing in any other respect, we discern no nonarbitrary reason to reject the tariff. For the reasons stated, we set aside as unlawful the order to which the petition is addressed and remand this matter to the Commission with directions to accord full retroactivity to the fifth year tariff revisions as presented in AT & T’s April 28, 1983, tariff filing. It is so ordered. . AT & T subsequently filed the same rates under protest with a prospective effective date. Those rates became effective on June 10, 1983. Thus, the sole matter at issue is whether the higher fifth year rates should have been applicable between April 16 and June 10, 1983. . We note, particularly, that the April 5, 1983, Reconsideration Order’s fourth year retroactive increase did in fact alter a tariff — the tariff that was prescribed by the September 29, 1982, order and applied to the balance of the fourth year. 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_respond1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Appellee, v. John Reginald ROHRBACH, Appellant. No. 86-1724. United States Court of Appeals, Eighth Circuit. Submitted Nov. 14, 1986. Decided March 5, 1987. Steven R. Davis, North Little Rock, Ark., for appellant. Linda Lipe Gleghorn, Asst. U.S. Atty., Little Rock, Ark., for appellee. Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges. BOWMAN, Circuit Judge. John Reginald Rohrbach appeals from his criminal conviction, contending that the District Court erred by denying his motion to suppress oral statements made by him to special agents of the Federal Bureau of Alcohol, Tobacco and Firearms (ATF). The statements in question were admitted into evidence at Rohrbach’s trial, and he was convicted under 18 U.S.C. §§ 922(a)(6) and 924(a) on two counts of making a false statement with respect to a fact material to the lawfulness of the sale of a firearm. For reversal, he argues that the statements should have been suppressed because they were not voluntary and because he did not knowingly and intelligently waive his constitutional right to remain silent. We affirm. Rohrbach was arrested by Arkansas authorities on state charges on August 25, 1985, as he was leaving a store from which he had purchased a gun. Rohrbach was taken to the Craighead County Jail and then transferred approximately 100 miles to the Cleburne County Jail. Ten days later, on September 4, 1985, while still in the custody of the state, Rohrbach was questioned by federal Special Agents Denny Reynaud and John Ford of ATF. Before questioning Rohrbach, the special agents advised him of the nature of the possible charges and of his constitutional rights to remain silent and to have an attorney. Ford read to Rohrbach ATF Form 320G.4, which contains a statement oí-Mi randa rights and a waiver of those rights. Both Rohrbach and the agents signed the form and Ford added the date and time of the signatures. During the ensuing interrogation, Rohrbach made oral statements, admitting that on two occasions in August 1985 he purchased firearms and that on both occasions he knowingly made false statements by denying in writing that he ever had been convicted of a felony. (In fact, Rohrbach had several prior felony convictions.) He refused to give the agents a written statement. At no time, however, did he ask for an attorney or in any way invoke his right to counsel. In December 1985, Rohrbach was indicted by federal authorities on the charges of which he now stands convicted. In May 1986, a pre-trial hearing was held by the District Court and Rohrbach’s motion to suppress was denied. The court found that Rohrbach gave his statements to the ATF agents voluntarily after making an uncoerced, knowing, and intelligent waiver of his Miranda rights. A jury trial then was held, the statements were admitted into evidence, and Rohrbach was found guilty, receiving concurrent five-year sentences on each of the two counts and a fine of $50. Rohrbach contends that his incriminating statements were not made voluntarily, and that the District Court erred as a matter of law in finding to the contrary. “The voluntariness of a confession is a legal inquiry subject to plenary review by the appellate courts.” United States v. Wilson, 787 F.2d 375, 380 (8th Cir.1986) (citing Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985)), cert. denied, — U.S. -, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986). To determine if a confession is voluntary, this Court will look at the totality of the circumstances, examining the tactics used by the police, the details of the interrogation, and any characteristics of the accused that might cause his will easily to be overborne. Rachlin v. United States, 723 F.2d 1373, 1377 (8th Cir.1983). We note that in Colorado v. Connelly, — U.S. -, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), the Supreme Court recently held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.” In Connelly, the Court ruled admissible a confession that was the product of a psychosis rather than the product of coercive tactics by the police. The Court observed that “the Fifth Amendment privilege [against self-incrimination] is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Id. 107 S.Ct. at 523 (quoting Oregon v. Elstad, 470 U.S. 298, 305, 105 S.Ct. 1285, 1291, 84 L.Ed.2d 222 (1985)). We read Connelly as establishing that an incriminating statement cannot be found “involuntary” in the constitutional sense unless it is established that the police extorted it from the accused by means of coercive activity. Because Rohrbach has not proved, or even alleged, any coercive activity by the ATF agents who interrogated him, we must reject, under Connelly, his claim that his incriminating statements to the agents were made involuntarily. His argument is not that the agents (or anyone else, for that matter) used coercive tactics, but that his personal characteristics, including minimal formal education and a history of alcohol and drug abuse and of suicide attempts, are indicative of an easily overborne will. That argument is legally indistinguishable from the argument unsuccessfully advanced by the defendant in Connelly. Although we believe that personal characteristics such as those on which Rohrbach relies would be relevant to the voluntariness issue once coercive police activity has been shown, Connelly makes it clear that such personal characteristics of the defendant are constitutionally irrelevant absent proof of “coercion brought to bear on the defendant by the State.” 107 S.Ct. at 522. Moreover, even if we were to put the Connelly decision aside and give full consideration to the evidence concerning Rohrbach's personal characteristics, we still would conclude that the District Court’s determination of voluntariness should not be disturbed. The District Court heard the testimony of Rohrbach and of other witnesses at the suppression hearing, evaluated that testimony, and found that Rohrbach’s incriminating statements had been made voluntarily. Having reviewed the transcript of the suppression hearing, we see no reason to overturn this determination by the able District Judge, who heard the witnesses and who necessarily evaluated their relative credibility and persuasiveness. Rohrbach’s claim that psychosis and drug dependency caused his will to be overborne implicitly was rejected by the District Court, which found that Rohrbach’s statement was “made without any coercion or duress at all.” Transcript (Tr.) at 62. In making this determination, the court had before it the testimony of a court-appointed psychiatrist who stated that Rohrbach displayed “no evidence of ongoing psychosis.” Tr. at 46. Moreover, testimony established that during the ten-day period between his arrest and questioning, Rohrbach no longer had access to drugs. In addition, the ATF agents testified that Rohrbach was lucid and able to communicate at the time of the interrogation. On the record before us, we cannot say that the District Court erred in any of its factual findings or as a matter of law in concluding that Rohrbach’s statements were voluntary. Rohrbach also contends that his refusal to sign a written statement may indicate that he did not understand that his oral statements could be used against him, despite his having signed a waiver form acknowledging that he understood his rights. In support of this contention, Rohrbach relies on Frazier v. United States, 419 F.2d 1161 (D.C.Cir.1969), in which the court speculated that if Frazier, who talked freely but directed the interrogating officer not to take any notes, was brooding over a guilty conscience while the Miranda warnings were being given he may have failed to perceive their import. In the present case, however, we have no reason even to consider engaging in such speculation. The District Court unequivocally found that Rohrbach’s statements were not only “free” and “voluntary,” but also “understandingly made.” Tr. at 62. These findings are well supported by the record, which reveals that Rohrbach, who was 24 years of age at the time of his interrogation by the ATF agents, is no stranger to the criminal justice system. Indeed, he has a history of reform school, arrests, and convictions. There has been no showing that he lacks intelligence, or that he was anything but calm and rational at the time of his interrogation. Rohrbach’s prior experience thus strongly buttresses the District Court’s determination that he was aware that his oral statements could be used against him and that he understood the significance of signing a waiver of rights form. We conclude that the District Court did not err in denying Rohrbach’s motion to suppress. Accordingly, his conviction is affirmed. . Our conclusion is not altered by Rohrbach’s argument that when the ATF agents interrogated him he had not yet been arraigned on the state charges for which he was in state custody. We note that little was made of this argument at the suppression hearing. Indeed, it was so inadequately developed that at the end of the suppression hearing the District Court expressed its impression that Rohrbach had been convicted on the state charges and was simply awaiting transportation to the Department of Correction at the time of the interrogation. Tr. at 61. But even granting the factual premise that Rohrbach had been in custody on state charges for ten days without arraignment, his argument fails, for he has not shown any causal nexus between any delay in his arraignment on the state charges and his incriminating statements to the ATF agents. He has simply asserted that there was such a delay. On this record, we are satisfied that this delay, if in fact it occurred, had no bearing on the voluntariness of Rohrbach’s statements to the ATF agents. See United States v. Jackson, 712 F.2d 1283, 1285-87 (8th Cir.1983). . The Supreme Court recently has held that a suspect’s rights under the United States Constitution are not infringed by the admission of his oral confession obtained after he has agreed to talk about the crime in question but has refused to give a written statement without his lawyer being present. Connecticut v. Barrett, — U.S. -, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987). Barrett’s argument (that he did not realize that his oral statements could be used against him) was essentially the same argument that Rohrbach has advanced here. The Court observed that it has never " ‘embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness.”’ Id. at -, 107 S.Ct. at 833 (quoting Oregon v. Elstad, 470 U.S. at 316, 105 S.Ct. at 1297). Rohrbach, of course, labors under the added difficulty that, unlike Barrett, he never in any way invoked his right to counsel, but merely refused to give a written statement. 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_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. UNITED STATES v. CERTAIN PARCELS OF LAND IN CITY OF PHILADELPHIA, PA., et al. ATWATER KENT MFG. CO. v. UNITED STATES. No. 8594. Circuit Court of Appeals, Third Circuit. Argued Oct. 5, 1944. Decided Oct. 20, 1944. Norman MacDonald, of Washington, D. C. (Norman M. Littell, Asst. Atty. Gen., Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., C. James Todaro, Sp. Asst, to Atty. Gen., and Vernon L. Wilkinson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellant. Russell Conwell Cooney, of Philadelphia, Pa. (Frank H. Mandil, of Philadelphia, Pa., on the brief), for Atwater Kent Mfg. Co. Before GOODRICH and McLAUGHLIN, Circuit Judges; and KALODNER, District Judge. GOODRICH, Circuit Judge. This is an appeal from a judgment entered in a proceeding to condemn 19.6 acres of land in the City of Philadelphia for defense housing purposes. Declaration of taking was filed; deposit of estimated compensation was made and judgment on the declaration was duly entered. A Board of View was appointed by the court and subsequently reported. The United States appealed from the award of the Viewers-Subsequent thereto the Atwater Kent Manufacturing Company filed its statement of claim in the proceedings, alleging the value of the property taken to be $253,-000. At the trial the value on the property placed by the various experts varied from $88,600 to $236,356. The jury’s verdict was for $190,000 upon which judgment was entered. The government appeals. The case upon appeal is based upon objections to the testimony of Harold P. Mueller, called as an expert witness as to value by the former owner. The first objection is that Mueller was incompetent as a witness because he did not show sufficient familiarity with the general selling price of similar property in the neighborhood. This objection is not seriously pressed or, in any event, cannot be sustained. Other witnesses for the landowner had testified to a number of sales of property in the neighborhood but were careful to point out that these sales were mainly of land to be used for industrial sites while the land in question was, under the zoning rules, classified under Division C which excluded property for industrial use. Mueller testified as to knowledge of two sales of plots for residential purposes in the general neighborhood. On the affirmative side he was shown to be a registered professional engineer and a builder who for twenty years had been engaged in the building business in Philadelphia and had built and sold approximately 2,000 houses. He was shown to be an officer of the Home Builders’ Association and as such knew what ground all the builders in the City were buying in the Philadelphia area. He had examined the official contour maps, was familiar with street improvements, the lines and grades of the property, the width of the streets, the transportation facilities, presence of schools and churches, etc. The question of his competency, in the first instance, was one for the determination of the trial court, 2 Jones on Evidence, 4th Ed. 1938, § 369; 2 Wigmore, Evidence, 3d Ed. 1940, § 561, and we see no abuse of discretion in allowing him to testify as an expert upon the question of value. The second point raised by the appellant is alleged error in not striking out Mueller’s testimony because it is said that his opinion of market value was erroneously admitted because it was based upon what the property would be worth to him. A number of Pennsylvania decisions are cited in support of the appellant’s argument upon this point. The practice, pleadings, forms and modes of proceeding in federal condemnation cases are, by statute, to conform “as near as may be” to that of the state in which the proceeding is had. 40 U.S.C.A. § 258. On the other hand, the questions of substantive right, such as the measure of compensation, being grounded upon the Constitution of the United States, are not controlled by state law. United States v. Miller, 1943, 317 U.S. 369, 379-380, 63 S. Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. In determining what compensation the owner is to receive for the land taken, this Court has recently held that evidence may be admissible which under the local state rule would be excluded. United States of America v. Certain Parcels of Land in the City of Philadelphia, etc., and F. King Wainwright, 3 Cir., 1944, 144 F.2d 626. In this particular case, however, we are not called upon to meet the question whether a federal court may receive evidence purporting to establish value which would be excluded were the trial in a state court. We may assume the applicability of a statement cited to us in the appellant’s brief from Friday v. Pennsylvania R. Co. 1903, 204 Pa. 405, 54 A. 339, 341, that “The subject of inquiry before the jury was the market value of the property, and not what a particular witness, having in view a special purpose, might be willing to give for it, if he had the money.” Witness Mueller on direct examination, testified to his familiarity with the property, street improvements, the grade lines, the zoning regulations, etc., saying that he took into consideration the surrounding area, sales of comparable property which were taken from his knowledge of sales gained from experience and bearing in mind transportation facilities and those of schools, churches, etc. and estimated the market value of the property on the day of taking at $11,500 an acre. He repeated the same estimate, in shorter form, on redirect examination. On cross-examination the witness stated, in response to a question, that he believed the most profitable use to which this property could be put was for houses. Then began a series of questions inviting statements from the witness based upon his experience as a builder. For instance: “So that if you had laid this out in lots you could only occupy fifty per cent of it with buildings ?” This cross-examination proceeded for a space that occupies twenty pages in the printed record. Contour of the land was discussed; so were perimeter streets, interior streets, grading, sewers and other items of expense which would be involved in utilizing the land for the purpose for which the witnesses testified it could most profitably be used. At the conclusion of the cross-examination the witness was asked whether *the scheme for development which had been brought out by the questions and answers was the one which he, the witness, was going to put into operation if he obtained the land for himself. He replied that it was. Counsel for the appellant then moved to strike the entire testimony. We do not find in all this, however, a showing that the witness based his estimate of present value on speculation of what could be done with the land in the future, like the milkmaid in the fable who estimated the value of her poultry crop from the expected profits of the basket of eggs carried on her head. The witness had testified to his experience as a builder and when asked technical questions about the use of this particular land for the building of houses gave the technical talk an expert would be expected to give. One would hardly suppose he would have replied, when asked if the plan he had described was the one he would have followed, that he would have said no, that the plan was simply offered for evidence and he, himself, would follow another. He stated categorically that he was estimating the value of the land based on all the factors above described. If severe cross-examination gave rise to an inference that this was not so and that he was attributing a personal value based upon his own individual expectation of profitable use, the contradiction in his testimony was for the jury to resolve. The appellant contends that the court erroneously restricted government’s cross-examination of the witness Mueller. We do not think that this objection can be sustained. The court did stop examination when it thought that it had gone too far. Counsel was allowed wide latitude in probing the basis of Mueller’s conclusion, seeking to establish, as indicated above, that it was based upon personal or speculative elements, in an estimate of present value. We do not think that it was unduly restricted. The case went to the jury under a clear charge of which neither party complains and in which the criterion for determining the amount of recovery was clearly stated. The verdict was for considerably less than the estimates of the plaintiff’s witnesses, although more than the figures given by the government witnesses. We find no reversible error in the proceedings. Affirmed. The trial court has wide discretion in determining the scope of cross-examination. 2 Jones on Evidence, 4th Ed. 1938, § 389, p. 736 ; 3 Wigmore, Evidence, 3d Ed. 1940, § 944. 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_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. UNITED STATES of America, Appellant, v. Alden D. STANTON and Louise M. Stanton, Appellees. No. 279, Docket 26665. United States Court of Appeals Second Circuit. Argued March 9, 1961. Decided March 23, 1961. Wayne G. Barnett, Department of Justice, Washington, D. C., Malvern Hill, Jr., Asst. U. S. Atty., Brooklyn, N. Y. (Abbott M. Sellers, Acting Asst. Atty. Gen., and Lee A. Jackson and James P. Turner, Dept, of Justice, Washington, D. C., and Cornelius W. Wickersham, Jr., U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellant. Clendon H. Lee, New York City (John C. Farber, William F. Snyder, Theodore Q. Childs and O’Connor & Farber, New York City, on the brief), for appellees. Before LUMBARD, Chief Judge, and MAGRUDER and WATERMAN, Circuit Judges. Sitting by designation. PER CURIAM. We are here called upon once more to review the finding by the district court that payments in the amount of $20,000, made to Alden D. Stanton in 1942 and 1943 by the Corporation of Trinity Church in New York City, were a gift and therefore not taxable as gross income under § 22 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 22. The original determination by the district court was reversed by this court. 2 Cir., 1959, 268 F.2d 727. That decision was vacated and the case remanded to the district court by the Supreme Court of the United States for “new and adequate” findings of fact. C. I. R. v. Duberstein, 1960, 363 U.S. 278, 80 S.Ct. 1190, 1201, 4 L.Ed.2d 1218. Judge Byers then made detailed findings regarding all the relevant facts and concluded again that the payments to Stanton were a gift. D.C.E.D. N.Y.1960, 186 F.Supp. 393. The mandate of the Supreme Court requires us to review the district court’s inferences drawn from its fact findings by the “clearly erroneous” standard of Federal Rules of Civil Procedure 52(a), 28 U.S.C.A., 363 U.S. at page 291, 80 S.Ct. at page 1200. We have reviewed, in the light of the Supreme Court decision, all the prior proceedings and the findings made by the district court. We cannot say that Judge Byers’ careful and detailed findings and conclusions are clearly erroneous, and accordingly we affirm the judgment of the district court. Chief Judge Lumbard concurs in this result because of the directive of the Supreme Court that appellate review be “quite restricted,” 363 U.S. at page 290, 80 S.Ct. at page 1199, although he is of the opinion that the contrary inference should have been drawn from the undisputed basic facts for the reasons set forth in the majority opinion of Judge Hand at 268 F.2d 727. Judgment affirmed. 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_circuit	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Bernice R. SMITH, Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, and Lena M. Smith, Appellees. No. 14167. United States Court of Appeals, Fourth Circuit. May 19, 1970. John B. Culbertson, Greenville, S. C„ on the brief for appellant. William D. Ruckelshaus, Asst. Atty. Gen., Joseph 0. Rogers, Jr., U. S. Atty., Kathryn H. Baldwin and Robert M. Feinson, Washington, D. C., on the brief for appellees. Before WINTER, CRAVEN and BUTZNER, Circuit Judges. PER CURIAM: In this appeal we find oral argument unnecessary and summarily affirm the judgment of the district court. The Secretary’s finding that the claimant was not the widow of the deceased, and, therefore, not entitled to Social Security Widows benefits, is amply supported by the record. Cain v. Secretary, 377 F.2d 55 (4 Cir. 1967). Affirmed. . Although it would appear that the finding that the adverse party Lena Smith is the widow of Melvin Smith is equally well supported, that issue is not before us. Since the claimant must establish her own eligibility for benefits, it is irrelevant whether she can show, on grounds independent of those on which she claims eligibility, the ineligibility of another party. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_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. Achilles ABBAMONTE, Appellant. No. 480, Docket 29540. United States Court of Appeals Second Circuit. Argued May 18, 1965. Decided July 16, 1965. Edward M. Shaw, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, on the brief; Michael W. Mitchell, Asst. U. S. Atty., of counsel), for appellee. Irwin Klein, New York City, for appellant. Before WATERMAN, MARSHALL and ANDERSON, Circuit Judges. MARSHALL, Circuit Judge. This appeal is from a judgment of conviction for violating 21 U.S.C. §§. 173, 174 entered after trial by jury before Judge Edward C. McLean in the United States District Court for the Southern District of New York. Trial was had on a single count indictment involving a single incident on one day. Appellant seeks a reversal on two grounds, alleged improper appointment of counsel and certain alleged errors in admissions of testimony. We will consider them in that order. I Appellant was indicted on June 23, 1964, and was confined to the United States House of Detention in lieu of $50,-000 bail. On June 24 appellant, claiming to be without funds, was assigned an attorney by Judge Wyatt and the case was adjourned to June 29 when appellant sought a reduction of bail. That was denied and the case adjourned to July 1. On July 1 appellant entered a plea of not guilty, bail was reduced to $30,000 and the case was adjourned to July 20 for motions to be filed. On July 10, on motion by appellant’s privately retained counsel, bail was further reduced to $20,-000 by Judge Bryan. On July 17 Judge Murphy denied further time to file motions and assigned the case for trial on July 20. On July 21 appellant notified Judge Cannella that he had had a dispute with the lawyer retained by his family and was then without counsel. Judge Cannella offered to appoint counsel for him but appellant declined the offer requesting time to obtain counsel of his own choice. Judge Cannella reassigned the Legal Aid attorney to help him while he sought to retain counsel of his choice, gave him an extra copy of the indictment, and carefully advised him of his right to subpoena witnesses. Appointed counsel was relieved when appellant said he would make bail and on August 4 appellant, through his retained counsel, sought a further adjournment of two weeks. Judge McMahon adjourned the trial to August 10 before Judge McLean. On August 10, after all these adjournments, changes in counsel, and motions for the reduction of bail, which surely would weary the most patient, appellant appeared before Judge McLean with his most recently retained counsel. He then requested another adjournment on the ground that he had only been out on bail for six days and wanted to subpoena some witnesses. His attorney, however, said that he was ready to go to trial, although he admitted appellant knew more about the case than he did. At that point, the following discussion took place: The Court: We will go ahead this morning. The Defendant: Then, your Hon- or, I have to make one more request then. I wouldn’t want Mr. Krieger as my lawyer. If he doesn’t go along with me at my request, I simply can’t have him as my lawyer. The Court: Well, you have had three lawyers now, Mr. Abbamonte, and there has to come a time when changing lawyers stops. Now, Mr. Krieger has been all over this with you. You retained him yourself. The Defendant: I didn’t retain him, sir. I didn’t retain him. My family retained him. The Court: Well, I think you should be content to have Mr. Krie-ger represent you. The Defendant: He might be a competent lawyer and the best lawyer around but I can’t have any faith if the man doesn’t go along with me. Mr. Gold: If your Honor please, I think what the defendant is asking for is that the lawyer go along with his own misstatements which Mr. Krieger is not willing to do. The Defendant: There is no misstatements. Mr. Krieger: Your Honor, unless this be terminated forthwith may this be conduct [ed] in the robing room? The Defendant: This is a new application of which I had no forethought. The Court: I don’t think there is much more to conduct. How do you feel about the latest remark ? Mr. Krieger: The only application is obviously if my client says he doesn’t want me, I want to join in an application to be relieved. If he doesn’t want me, I don’t want him. Mr. Gold: Your Honor, this case has gone on this long and this is obviously another tactic to try and delay it and try to put off the trial. The Defendant: There is no tactics. I will subpoena my people today, if you want, your Honor. I will not hold this court up any longer. I am just looking for a fair trial, your Honor. The Court: You will get a fair trial, Mr. Abbamonte, and I think in your interest Mr. Krieger should continue to represent you. He is an experienced lawyer, and he’s been over this case with you and he knows what defense to put in. The Defendant: We haven’t gone over the case, your Honor. The Court: You have had two other lawyers before Mr. Krieger, and I don’t feel that I should just put everything off for you to try to find another one. If you can’t make an arrangement with Mr. Krieger that is satisfactory to both of you then I will have to assign Mr. Krieger to represent you but I’m going to go ahead with this today. Mr. Krieger: Well, I call the question, your Honor, I ask for a ruling on my motion to be relieved because of dissatisfaction of the defendant. The Court: I don’t feel, Mr. Krie-ger, that there is any real dissatisfaction. I feel that this is an effort on the part of the defendant to secure further delay. Now, I have confidence in you and I know you are a good lawyer and you handle these things well, and I hope that you and the defendant will dispose of whatever difficulties you have which apparently haven’t existed until this minute, but I will assign you anyway and ask you to go ahead with it. Mr. Krieger: Then it is your Honor’s ruling that — will I be correct in stating — -you grant my application to be relieved as retained counsel and you assign me as assigned counsel to represent this defendant? The Court: If necessary I will do that but I hope that in a few minutes’ time you and your client can dispose of your difficulties and there won’t be any need to relieve you. So we will hold the application in abeyance, if you like, but if you do feel that you have to renew it, I’m going to deny it and I will relieve you from private counsel and assign you as assigned counsel, if you have to. Mr. Krieger: May I have your Honor’s indulgence for about a moment? The Court: Go ahead. (Discussion off the record.) Mr. Krieger: Do you wish to say anything to the court? The Defendant: I don’t wish Mr. Krieger as my lawyer. Mr. Krieger: I think on that basis, your Honor must make a rising, most respectfully. The Court: Very well. I will relieve you in that sense, if you like, but I’m going to assign you to represent this defendant and we are going to go ahead with the trial because we can’t be perpetually changing lawyers. Mr. Krieger: Then my being relieved is without restriction, it is an unconditional release and a consequent and almost simultaneous assignment. The Court: Put it that way if you like. Mr. Krieger: Very well, your Honor. I have been assigned to represent you. The Defendant: This is against my will. The Court: I’m sorry, but there comes a time when you have to put an end to this. The Defendant: Your Honor, I’ve only been out on bond since last Tuesday. They had me incarcerated for nine weeks. I have a family outside. I have a boy going to high school. I had to make a lot of preparations for my family to get prepared here. The Court: All right. That’s all. Mr. Krieger: Thank you, your Honor. Appellant was not a pauper. Instead his complaint is that he was not permitted to have the “assistance of counsel of his own choice” or to proceed without counsel and that this was in violation of Rule 44, Federal Rules of Criminal Procedure and of the Sixth Amendment. Under the circumstances of this case, and in light of the earlier proceedings, we cannot agree. The record of this case reveals a series of endless delays and maneuvers that could only have a dilatory purpose. Considering all the previous opportunities appellant had to retain counsel, the warnings and advice of the district judges concerning the inevitability of trial and the importance of retaining counsel, and the previous changes in counsel, Judge McLean could have then ordered appellant to proceed to trial without counsel after Mr. Krieger had been dismissed. “* * * [W]here a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney.” United States v. Arlen, 252 F.2d 491, 494 (2 Cir. 1958). The right to counsel “cannot be * * * manipulated so as * * * to interfere with the fair administration of justice.” United States v. Bentvena, 319 F.2d 916, 936 (2 Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). Against this background, if Judge McLean had ordered appellant to proceed to trial without counsel, appellant’s constitutional right to the assistance of counsel would not be violated. As the Circuit Court for the District of Columbia recently declared: “Counsel urges that when the constitutional right is pitted against the inconvenience of delay a substantial presumption must be indulged in favor of the former. This is true, but in the case at bar Cleveland is not asserting a bare right to counsel or to choose his own counsel. He is asserting a right to a third choice. He had first chosen to have the court appoint counsel for him; this was done. He then chose to have a lawyer from the Intern program; this was granted. Then on the day of the trial he advanced a third choice, i. e., retained counsel. The problem here is not the right to counsel or the right to counsel of the defendant’s choice. It is whether another continuance was required to allow the defendant to exercise the right to a third choice. We think that, under the circumstances of this case, the assignment judge could reasonably have concluded that it was not.” Cleveland v. United States, 116 U.S. App.D.C. 188, 322 F.2d 401, 402-403, cert. denied, 375 U.S. 884, 84 S.Ct. 157, 11 L.Ed.2d 114 (1963). Accord: Leino v. United States, 338 F.2d 154 (10 Cir. 1964); Neufield v. United States, 73 U.S.App.D.C. 174, 118 F.2d 375 (1941), cert. denied, Ruben v. United States, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1942). Since Judge McLean could have ordered appellant- to trial without counsel, and thus could have deprived appellant of the opportunity of choosing and retaining another counsel, the remaining question is whether it was improper to deprive appellant of the opportunity to conduct his own defense by appointing Mr. Krieger as his counsel. See generally Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942), rehearing denied, 317 U.S. 605, 63 S.Ct. 442, 87 L.Ed. 568 (1943); Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Annot., 77 A.L.R.2d 1233 (1961). We hold that in the circumstances of this case Judge McLean did not commit reversible error in assigning Mr. Krieger. Appellant’s sole reason for discharging Mr. Krieger was his refusal to make the request for a further postponement to which the appellant was clearly not entitled. He gave no indication that he wished to defend himself. Rather, Judge McLean could have reasonably inferred that appellant sought nothing more than a repetition of his maneuvers for delay, which was his real objective, by the tactic of firing still another lawyer, and that appellant had no intention of conducting his own defense because of any substantial dissatisfaction with his attorney. This would, of course, have been clearer if the court had followed the preferable procedure of inquiring of appellant whether he wished to continue with Mr. Krieger or, in the alternative, proceed pro se. But any reluctance we might have about resting our holding on inferences is dispelled by the conclusion that the appointment of Mr. Krieger helped rather than harmed Abbamonte. Mr. Krieger is an able and experienced criminal lawyer. He had conferred with the accused and was familiar with the case, which was not unduly involved. And, after carefully reviewing the entire transcript of the trial, we can confidently state that, from beginning to end, Mr. Krieger conducted a most vigorous defense. During the entire trial appellant did not object to Mr. Krieger’s strategy or questioning, and even at this late stage, appellant is unable to point to any dereliction of duty on Mr. Krieger’s part. II Appellant’s claim of reversible error in the admission of testimony of government’s rebuttal witness is without merit. A defense witness, Heywood Williams, testified that he had been dragged down to Narcotics headquarters without a warrant and “charged with obstructing justice” because he had revealed an agent’s identity. The government called its agent who testified: “During the course of early April 1964, I had been receiving reports from various agents in the office that Heywood Williams an informant under my control was pointing out Agent Coursey to narcotic violators in the Harlem, New York areas was [sic] a federal agent; and was consequently jeopardizing Agent Cour-sey’s status.” This testimony was admissible to explain the reason Williams was brought to headquarters. It was not reversible error, Busby v. United States, 296 F.2d 328 (9 Cir. 1961), cert. denied, 369 U.S. 876, 82 S.Ct. 1147, 8 L.Ed.2d 278 (1962). Likewise, the testimony of another agent concerning a conversation between appellant and his partner relating to another transaction was clearly admissible on the issue of appellant’s knowledge and willingness to deal in narcotics, United States v. Massiah, 307 F.2d 62 (2 Cir. 1962), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The judgment is affirmed. . “Assignment of Counsel. If the Defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.” . Appellant concedes that his statement to Judge McLean to the contrary, see supra pp. 701, 702, was inaccurate. 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_direct2	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. WELLS v. DEMETER et al. No. 1367. Circuit Court of Appeals, Tenth Circuit. June 30, 1936. Rehearing Denied Aug. 5, 1936. John Barry, of Oklahoma City, Okl. (W. R. Bleakmore, of Oklahoma City, Old., on the brief), for appellant. Henry G. Snyder, of Oklahoma City, Okl. (W. A. Lybrand, of Oklahoma City, Old., on the brief), for appellees. Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges. McDERMOTT, Circuit Judge. This suit was brought by Demeter, the owner of $6,000.00 of nonvoting preferred stock of The Atkinson, Warren & Henley Company, against that corporation and Wells. The bill alleged that the corporation was in process of voluntary liquidation; that the preferred stock was entitled to a preference over the common stock in liquidation as well as in dividends; that it had been sold upon representations to that effect, and had been so treated by the corporation during the early stages of the liquidation; that some of the holders of the common stock had lately challenged such preferential right, and that the corporation proposed to complete the liquidation in disregard of such rights of the preferred stockholders. The prayer of the bill was that the corporation, its officers and agents, be enjoined from distributing any part of its assets to the common stockholders until plaintiff’s preferred stock was paid in full. Why Wells was joined as a party defendant we are not advised. The only allegation concerning him is that he was one of a committee of common stockholders to investigate the legal rights of the preferred stockholders, which committee had not reported. No cause of action is stated against Wells and no relief sought against him. The defendants joined in an answer. Counsel for Wells appeared at the trial. The decree perpetually enjoined the corporate defendant from distributing any part of its assets to the common stockholders until “plaintiff shall have received, ratably with other preferred shareholders, and shall have been paid” the face value of his stock plus accumulated dividends; and, it appearing that the corporation had sufficient funds to pay in full all outstanding preferred stock, such payment was forthwith ordered. No relief was granted against Wells, although the decree recited that Wells appeared for such of the common stockholders as opposed the claim of plaintiff, and that he excepted to the decree. Wells appealed; the corporation did not. We have then this anomalous situation : The only relief asked for or granted was against the corporation, which has not appealed. An appeal is taken by one against whom relief was neither asked nor granted. Wells does not pretend to appeal for the corporation, and of course he could not, for, except under circumstances not present here, control of corporate litigation is vested in its governing body and not in' each of its individual stockholders. Presumably the governing body believed the decree below was right; in any event, no appeal was taken nor were any steps taken which conceivably might have enabled Wells, in analogy to a stockholder’s bill, to have asserted rights which properly might have been asserted by the corporation. Nor did Wells seek affirmative relief in the court below which, if denied, would have enabled him to appeal therefrom. Wells has no authority to appeal from the decree against the corporation; there is no decree against him personally. But if the decree be treated as running sub silentio against him and the corporation jointly, then the appeal must fail because no proceedings in summons and severance were had against the corporation. A joint decree against two or more parties will not be reviewed on appeal unless all join in the appeal, or unless proceedings in summons and severance, or its equivalent, have been had against those who do not join. Hartford Accident & Ind. Co. v. Bunn, 285 U.S. 169, 52 S.Ct. 354, 76 L.Ed. 685, reviewing the earlier cases. Boynton v. Hutchinson Gas Co., 292 U.S. 601, 54 S.Ct. 639, 78 L.Ed. 1464; Texas Land & Cattle Co. v. Fort Worth, 295 U.S. 716, 55 S.Ct. 658, 79 L.Ed. 1672. Where such a situation appears, the court “will then, of its own motion, dismiss the case, without awaiting the action of a party.” Estis v. Trabue, 128 U.S. 225, 9 S.Ct. 58, 60, 32 L.Ed. 437. Our own court has twice stated the rule. Clarke v. Boysen, 39 F.(2d) 800, 821; City of Shidler v. H. C. Speer & Sons Co., 62 F.(2d) 544. This case presents an excellent reason for the rule. The corporation not having appealed within the statutory period, the decree as to it is final, and is beyond our power to vacate. By that decree the corporation is enjoined from distributing any part of its assets to the common stockholders before the preferred stock has been paid, and is commanded forthwith to pay such preferred stock in full. Were we so disposed, we could grant appellant no relief without vacating this decree against the corporation; we cannot vacate it because no appeal was taken by the corporation. The appeal is dismissed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_r_natpr	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". 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. Anthony GUIDE, Plaintiff-Appellant, v. Sam DESPERAK and Joseph Roschko, individually and as co-partners doing business under the firm name and style of Advance Sewing Machine Company, Defendants-Appellees. Anthony GUIDE, Plaintiff-Appellant, v. ADVANCE SPIRAL MACHINE COMPANY, Inc., Defendant-Appellee. Nos. 269, 270, Dockets 24378, 24379. United States Court of Appeals Second Circuit. Argued March 13-14, 1957 Decided Oct. 22, 1957. Darby & Darby, New York City (Harvey W. Mortimer, New York City, and Harry W. F. Glemser and Bacon & Thomas, Washington, D. C., of counsel, on the brief), for plaintiff-appellant. Samuel J. Stoll, Jamaica, N. Y., for defendants-appellees. Before, HINCKS, STEWART and LUMBARD, Circuit Judges. PER CURIAM. Appellant is the owner of patent No. 2,674,963. He brought these two actions; one for patent infringement, and the other for unfair competition. Defendants counterclaimed for a judgment declaring the patent invalid. Both causes were tried together and Judge Dawson, in an opinion reported at 1956, 144 F.Supp. 182, held that the patent was invalid because of the failure of the patentee to describe his claims with sufficient particularity as required by § 112 of the Patent Code, 35 U.S.C.A. § 112 The action for unfair competition was dismissed for lack of supporting evidence and the propriety of that disposition is not challenged on this appeal. The patent in issue covers a device for spirally stitching preformed hemispherical cups for brassieres. The cup is placed on a pin and a tubular work holder shaped like an inverted U, engages the pin in such a manner as to allow the cup to rotate freely. A sewing machine then stitches the cup and as it is being sewn, the center of the cup is gradually moved away by the attachment from the sewing needle at a predetermined rate proportional to the speed of the stitching and feeding mechanism of the sewing machine, so that the spaces between stitching convolutions remain equal, despite the fact that every convolution is longer than its predecessor. Spiral stitching had been accomplished previously only on flat pieces of material. Thus in the Gensheimer patent (No. 2,551,261, May 1,1951) a piece of material, held flat was sewn with a spiral stitch, then a pie shaped segment was cut from the material and it was resewn so that a cone or brassiere cup was formed. The similarities and differences between the Gensheimer device and the Guide patent will be discussed more fully when we take up the question of the patentability of Guide’s machine. Some other machines for spiral stitching and their uses are noted in the margin. Every claim in suit, viz., 1, 2, 3, 6, 7, 12, and 14, as the appellant points out in his brief on appeal, includes in its stated combination an element described as a “U-shaped holder member” (claim 14), or as “a work support constructed and arranged pivotally to support a hemispherical workpiece” (claim 12), or as “means * * * for pivotally supporting the work” upon a laterally shiftable work support (claim 1). As the trial judge observed “ * * * the only invention, if it be an invention, made by the plaintiff was the addition of [this variously described] U-shaped holder” to the claimed combinations. 144 F.Supp. at page 187. On the basis that the new element embodied in the patent was the U shaped holder, the District Court held that the patent was void under § 112 of the Patent Code, for failure to specifically state the invention. We think that this holding was in error. If all the patentee had claimed was his utilization of the U shaped work holder, the case would fall within the rule of General Electric Co. v. Wabash Appliance Corp., 1938, 304 U.S. 364, 58 S.Ct. 899, 82 L.Ed. 1402, in that the patent did not meet the requirement of “ * * * precise descriptions of the new characteristic for which [the patent] protection is sought.” 304 U.S. at page 369, 58 S.Ct. at page 902. But the patent did not merely cover the U shaped work holder. The patent claimed the combination. True, all of the elements of the combination, save the work holder, were old to the art. It was the combination itself which was novel, and even where none of the elements is new, the rule is well settled that a unique combination of old ideas may be patentable. Williams Manufacturing Co. v. United Shoe Machinery Corp., 1942, 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537; Leeds & Catlin Co. v. Victor Talking Machine Co., 1908, 213 U.S. 301, 29 S.Ct. 495, 53 L.Ed. 805. The distinction between combination patents and those relating to a single element is aptly set out in Parks v. Booth, 1880, 102 U.S. 96, at page 102, 26 L.Ed. 54: “[Some] inventions embrace only one or more parts of a machine, and in such cases the part or parts claimed must be specified and pointed out, so that constructors, other inventors, and the public may know what the invention is and what is withdrawn from general use * * . Modern inventions very often consist merely of a new combination of old elements or devices, where nothing is or can be claimed except the new combination. Such a combination is sufficiently described, to constitute a compliance with the letter and spirit of the act of Congress, if the devices of which it is composed are specifically named, their mode of operation given, and the new and useful result to be accomplished is pointed out, so that those skilled in the art and the public may know the extent and nature of the claim and what the parts are which cooperate to do the work claimed for the invention.” The appellant, therefore, has complied with the requirements of § 112 of the patent statute, since the claims in issue specify the elements and the mode of operation of appellant’s combination. Moreover, the specification points out the new and useful result appellant claims to have accomplished as follows: “In its more specific aspects the invention is concerned with the stitching of generally hemispherically constructed forms of work, for example, brassiere elements.” The judge below expressed concern “that the patent, because of its very breadth could become a weapon to deter other persons, on threat of infringement actions, from building or using machines [not embodying appellant’s improvement].” But “ * * [I]t has never been thought that a claim limited to an improvement in some element of the machine is, by such reference [to the machine], rendered bad as claiming a monopoly of [the various parts of the machine].” Williams Manufacturing Co. v. United Shoe Machinery Corp., supra, 316 U.S. at page 369, 62 S.Ct. at page 1182. Infringement of a combination patent occurs only through a combination comprising every one of its elements or a mechanical equivalent. Rowell v. Lindsay, 1885, 113 U.S. 97, 5 S.Ct. 507, 28 L.Ed. 906. Thus, we hold that the claims in the appellant’s patent did meet the requirements of § 112 of the Patent Code, and we come now to the question of whether the combination in question constitutes invention. Although the District Court did not pass specifically on that issue, both parties presented it fully in the court below and on this appeal and we therefore proceed to that question. Section 103 of 35 U.S.C.A. sets forth the general requirement of inventions: “A patent may not be obtained * * * if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains * * ” As we have noted before, spiral stitching had been known to the art before Guide’s machine was introduced. In 1951 Gensheimer had patented a machine for spirally stitching brassiere elements, substantially similar to the one for which the patent was granted to Guide in 1954, the only difference being that in using the Gensheimer device the work was stitched flat and then formed into cones, while Guide’s device stitched the preformed cones. Under either method a segment had to be cut out of the material in order to form the cup. Thus Guide merely reversed the steps required in the manufacture of the brassiere elements in that he formed the cup prior to its introduction into the machine, while under the process used with the Gensheimer machine the cup was formed after it had been spirally stitched. The difference between the two machines, therefore, was only the height of the periphery of the work holder; in Gensheimer the work holder was flat, in Guide it was U shaped. If a preformed cup were stitched on the Gensheimer machine the edge would be crushed down by the work holder; it was to prevent this that the U shaped holder was substituted in the combination by Guide. The substitution of the U shaped holder for a flat holder was a necessary and obvious step to anyone skilled in the art, and cannot be classed as invention. See Welsh Manufacturing Co. v. Sunware Products Co., 2 Cir., 1956, 236 F.2d 225. We think it should be made clear that we disassociate ourselves from Judge Dawson’s observations at pages 186 and 187 of 144 F.Supp. with regard to the operations of the Patent Office. The problems of that office in processing patents on an ex parte basis with a limited staff of searchers and examiners and with present facilities are difficulties which may not fairly be appraised by judges passing on single cases. Nor are statistical results in cases where the validity of patents is passed upon by the federal courts an equitable measure of efficiency. Necessarily those patents whose issuance is subject to doubt will be more frequently questioned in litigation. The calibre of executive performance is more properly the concern of the Congress which is able to obtain the necessary information pertinent to the determination of whether an executive agency is sufficiently staffed so as to enable it effectively to discharge its duties. For these reasons it seems to us that comment concerning the Patent Office is inappropriate. Since the patent in suit is invalid for lack of invention, the decision of the District Court is affirmed. . “The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” . No. 1,259,324 Weiss March 12, 1918 Hat brims 2,437,624 Sutker March 9, 1948 Hat brims 1,463,116 English July 24, 1923 Cap brims . Claim 14 reads in part: “The combination with a sewing machine having stitching mechanism including a needle, a presser foot and work feeder and driving means therefor, of means for guiding the work laterally relative to the direction of the forward feed produced by the stitching mechanism at a progressively varying rate, comprising a laterally shiftable work support member; means carried by said work support member including a generally XJ shaped holder member; a work-piercing needle mounted upon one of said members for pivotally supporting a work piece for free rotation relative to said members, said holder member having a portion of one of its legs adjacent the work supporting member substantially in alignment with said needle and cooperating with said work supporting member for maintaining a work piece in place; •> * ”. (Emphasis added.) Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_appel1_1_3	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. SPARTACUS, INC., a Pennsylvania Corporation, Marcia Lynn Poslik, Maureen Bottles, Patricia Ann Herd, April Mancini, Regina Golden, Sandra Blake and Janet Iverson, and Jane Does v. BOROUGH OF McKEES ROCKS, a Municipal Corporation, Thomas Connolly, Mayor of the Borough of McKees Rocks and individually, Ronald Panyko, Donald Panyko, Lou White and John Does, police officers of the Borough of McKees Rocks and as individuals, Spartacus, Inc., Appellant. No. 82-5312. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Oct. 26, 1982. Decided Dec. 10, 1982. Rochelle S. Friedman, Pittsburgh, Pa., for appellant. Samuel J. Pasquarelli, Jubelirer, Pass & Intrieri, P.C., Pittsburgh, Pa., for appellee. Before ADAMS, HUNTER and GARTH, Circuit Judges. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. Appellants are Spartacus, Inc., a corporation doing business in the Borough of McKees Rocks, Pennsylvania, and the individuals who work at Spartacus. Appellees are the Borough, its mayor, and some of its police officers. Borough Ordinance No. 1343 requires that health clubs and massage technicians must obtain licenses. Failure to obtain a license is a summary offense carrying a fine of up to $300 or, if the fine goes unpaid, thirty days imprisonment. After Borough police had repeatedly inspected the premises of Spartacus and issued citations to appellants for failing to obtain the required licenses, appellants brought suit against appellees in the United States District Court for the Western District of Pennsylvania. Appellants claimed that, because the ordinance either did not apply to them or was vague, the frequent issuance of citations violated their rights under the first, fourth, fifth, and fourteenth amendments to the United States Constitution. Pursuant to 42 U.S.C. § 1983 (1976), appellants sought declaratory relief, damages, and also temporary and permanent injunctions against the enforcement of the ordinance. Appellants moved for the issuance of a preliminary injunction. On April 12, 1982, the district court issued an order denying the motion. In its oral opinion the court found that the ordinance did apply to appellants, was not vague, and did not violate appellants’ constitutional rights. The court also found that appellants had failed to demonstrate irreparable harm “in the equitable sense” because they had failed to apply for licenses. App. at 195. Appellants then filed this appeal. An appellant challenging the denial of a preliminary injunction “bears a heavy burden.” Chesimard v. Muleahy, 570 F.2d 1184, 1187 (3d Cir.1978) (citations omitted). As we stated in Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir.1982) (en banc): A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014, 101 S.Ct. 573, 66 L.Ed.2d 473 (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party “will be irreparably injured pendente lite if relief is not granted.” Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir.1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the district judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir.1972). Consequently, the scope of appellate review of a trial court’s ruling is narrow. Unless the trial court abused its discretion, or committed an error in applying the law, we must take the judgment of the trial court as presumptively correct. Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 357 (3d Cir.1980). Id. at 443. In this appeal appellants raise only two issues. First, they argue that the evidence at trial was insufficient to sustain their convictions under the ordinance. Second, they urge that the ordinance is void for vagueness. Both arguments go only to appellants’ likelihood of success on the merits. Appellants fail to ask us to review the district court’s finding of no irreparable harm. To justify reversal of the trial court’s determination, however, appellants must demonstrate that the district court abused its discretion not only in holding that they had no reasonable probability of success on the merits, but also in holding that they would not be irreparably harmed. Chesimard, 570 F.2d at 1188. They have not done so. Accordingly, the order of the district court will be affirmed. . Appellants have since been convicted upon the citations before a magistrate. In a trial de novo, the Court of Common Pleas of Allegheny County, Pennsylvania, reversed the convictions of the individual appellants and affirmed the convictions of Spartacus, Inc. The appeal of Spartacus is still pending. . Appellants also have filed a Complaint in Equity in the Court of Common Pleas of Allegheny County seeking an injunction against further enforcement of the ordinance. That complaint was dismissed and the proceeding is no longer pending. Appellees contended below that the proceedings in the court of common pleas constituted the final adjudication of the issues now before us. Because appellees do not renew that contention on appeal, we do not address it. . The district court also queried but did not determine whether injunctive relief was improper under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1970). Although the appeal of Spartacus, Inc., is still pending, see note 1, we conclude that Younger does not bar injunctive relief in the instant case because appellants state that their complaint should be read to seek injunctions against only future citations and prosecutions under the ordinance. See Wooley v. Maynard, 430 U.S. 705, 709-711, 97 S.Ct. 1428, 1432-1433, 51 L.Ed.2d 752 (1977); Doran v. Salem Inn, 422 U.S. 922, 930, 95 S.Ct. 2561, 2567, 45 L.Ed.2d 648 (1975); Conover v. Montemuro, 477 F.2d 1073, 1080 (3d Cir.1973). . Appellants and appellees state that our appellate jurisdiction arises under 28 U.S.C. § 1291 (1976). The order of the district court is not a final decision within the meaning of that section, however. Instead, our jurisdiction arises under 28 U.S.C. § 1292(a)(1) (1976), which permits an appeal from the interlocutory order of a district court refusing to issue a preliminary injunction. . Of course, a United States Court of Appeals does not sit as a Pennsylvania appellate court to review the sufficiency of the evidence before the Pennsylvania Court of Common Pleas. We read appellants’ brief as inartfully arguing that appellants do not fall within the statute. . We agree with the concerns raised by the dissent. Although we have decided not to dismiss the appeal in this case, our opinion should not be read as approving in any way the submission of deficient briefs or appendices. Attomeys jeopardize their clients’ cases as well as their own professional standing by failing to comply with the Federal Rules of Appellate Procedure and the Rules of this Circuit. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_direct1	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. The CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), Plaintiff-Appellee, v. CORPORACION HOTELERA de PUERTO RICO et al., Defendants-Appellees, Municipality of San Juan, Intervenor-Appellant. No. 74-1231. United States Court of Appeals, First Circuit. Argued Feb. 5, 1975. Decided May 14, 1975. Robert E. Schneider, Jr., Sahturee, P. R., for intervenor-appellant. Justo Gorbea Varona, Asst. Sol. Gen., with whom Miriam Naveira De Rodon, Sol. Gen., San Juan, P. R., was on brief, for the Secretary of the Treasury of Puerto Rico. Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges. PER CURIAM. This is an appeal from an order of the District Court for the District of Puerto Rico denying an application for leave to intervene. The suit began in August, 1967, when the Chase Manhattan Bank filed to foreclose on a mortgage of a tourist hotel held by the Corporación Hotelera de Puerto Rico, which soon thereafter became bankrupt. The Secretary of the Treasury of Puerto Rico was joined as a party defendant, and he alleged that the mortgaged property was subject to a lien for unpaid property taxes and claimed priority over the proceeds from its sale. In 1968 the court entered a judgment in favor of Chase Manhattan for foreclosure of its mortgage. The judgment recognized and provided for the priority of the tax lien. After unsuccessful attempts at negotiated sales, and after several defaults by successful bidders at public sales of the property in execution of the foreclosure judgment, a sale to San Jeronimo Hotel Corporation was confirmed in November, 1972. In December, 1972, the court ordered that from rental income held by the court the sum of $831,438.61 (increased the next month to $832,875.51) be paid to the Secretary of the Treasury to be held in escrow, pending a determination as to tax liability, to cover the lien for taxes on the property and thus enable the buyer to obtain a clear title. On June 13, 1973, pursuant to the Industrial Tax Exemption Act of 1963, 13 L.P.R.A. § 252a, the Governor of Puerto Rico granted a tax exemption to the bankrupt corporation dating back to the time of its application in 1965. The exemption did not include the hotel’s casino. See id. § 252a(f)(4). In view of the tax exemption, on June 25, 1973, Amron Credit Corporation and Enrique Campo del Toro, holders of second mortgages on the property, requested that the $832,-875.51 held by the Secretary of the Treasury be released and disbursed to them. On August 1, 1973, the Secretary of the Treasury stated to the court that $333,-253.71 was still due because the property was leased to a non-exempted business after May 27, 1971, but that it had no interest in funds beyond that amount. The Secretary accordingly consented to release the balance of $499,621.80 if the trustee of the bankrupt accepted the terms of the grant of exemption. On August 29, 1973, the trustee so agreed, and on September 5, 1973, the court ordered that the $499,621.80 be disbursed to the two second mortgagees, and that the remaining $333,253.71 be retained in escrow pending determination of the bankrupt’s tax liability on that amount. On September 14, 1973, the Secretary disbursed the $499,621.80. On November 30, 1973, the Municipality of San Juan filed a motion to intervene, asserting that the distribution deprived it of tax revenues not exempted by the Governor’s grant or by state law. The district court denied the motion on the ground, among others, that the intervention was untimely, and this appeal followed. Intervention in a federal court action is governed by Rule 24, Fed.R. Civ.P. Even when an applicant states a claim to intervention of right rather than seeks permissive intervention, the application must be timely if it is to be granted. Timeliness is to be gauged from all the circumstances, including the stage to which the proceedings have progressed before intervention is sought. The district court is to exercise its discretion in determining timeliness, and its ruling will not be disturbed on review unless there is an abuse of discretion. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). Here the Municipality’s motion to intervene is in effect a request that the court unscramble the distribution it ordered and reopen proceedings two-and-a-half months after the execution of its judgment. Intervention after judgment is unusual; it is granted only in very special circumstances. See J. Moore, 3B Federal Practice K 24.13 (1974 ed.). The Municipality was well aware that proceedings were in progress dispositive of its tax claims, and all relevant facts, such as the mortgagees’ formal request for release of the escrow funds and the Secretary’s response thereto, could have been readily determined from the court records. Indeed, correspondence between the Mayor of San Juan and the Secretary of the Treasury reveals that well prior to the final decree the former wrote to oppose the retroactive tax exemption and was advised that it had been granted. The Municipality argues that it could not have known that the Secretary would also consent to release tax claims for non-exempt property, such as the casino, but we think the burden was on the Municipality, if it wished to participate in whatever final disposition was made, to make known its desire pri- or to the entry of the final decree. It could not rely without murmur on the Secretary’s representation throughout the proceeding and, after a final decree was entered not to its liking, intervene and reopen. It is argued that ordinary principles of timeliness do not apply when a municipal corporation seeks to prevent the loss of tax revenues. We know of no support for such a contention, nor do we give credence to the assertion that appellant’s motion, if granted, would not adversely prejudice any parties or cause any disruption. Although a public body has a right to its lawful revenues, this right cannot override the importance to the federal judicial system, and to persons interested in the litigation, of orderly proceedings and of certainty of a final disposition. Thus even assuming, which is unclear, that the Municipality has any standing under Puerto Rican law to litigate a position adverse to that of the Secretary of Treasury, we are disinclined to facilitate a collateral attack upon a final decree that was entered with the participation of responsible Commonwealth officials who, insofar as anyone could tell at the time, were fully representing the Municipality’s interests. As the motion was untimely, the district court did not abuse its discretion in denying appellant’s motion. Affirmed. . The court had jurisdiction in the mortgage foreclosure action under the Banking Act of 1933, 12 U.S.C. § 632. . In addition to objecting to the Governor’s grant of the exemption to a bankrupt corporation, the Municipality alleged claims to taxes for the non-exempt portion of the property used for the casino, for the second part of fiscal 1972-73, and for the period before the exemption application and for the period between May 27, 1971, and July 1, 1971. . The district court stated that it lacked subject matter jurisdiction to grant some of the relief requested. Since we hold that the district court did not err in finding the motion to intervene to be untimely, we do not consider ,.he correctness of that ruling. . Rule 24 provides in pertinent part, “(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” . Throughout the proceedings in the district court the Secretary of Justice of Puerto Rico represented the Secretary of the Treasury. The Municipality’s claim to taxes derives from the Puerto Rican legislature, P.R.Const. Art. VI, § 2, and the Municipality has no ability to assess or collect taxes other than through the Treasury. See 13 L.P.R.A. § 447. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_issue_10	C	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. MID-CON FREIGHT SYSTEMS, INC., et al. v. MICHIGAN PUBLIC SERVICE COMMISSION et al. No. 03-1234. Argued April 26, 2005 Decided June 20, 2005 James H. Hanson argued the cause for petitioners. With him on the brief were Andrew K. Light and Lynne D. Lidke. Malcolm L. Stewart argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneed-ler, Mark B. Stern, Sushma Soni, Jeffrey A. Rosen, Paul M. Geier, and Dale C. Andrews. Henry J. Boynton, Assistant Solicitor General of Michigan, argued the cause for respondents. With him on the brief were Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and David A. Voges, Michael A. Nicker-son, Glenn R. White, and Emmanuel B. Odunlami, Assistant Attorneys General. Justice Breyer delivered the opinion of the Court. This case concerns pre-emption. A Michigan law imposes “an annual fee of $100.00” upon each Michigan license-plated truck that is “operating entirely in interstate commerce.” Mich. Comp. Laws Ann. §478.2(2) (West 2002) (hereinafter MCL). A federal statute states that “a State registration requirement,.. is an unreasonable burden” upon interstate commerce when it imposes so high a fee. 49 U. S. C. § 14504(b) (emphasis added); see also § 14504(e)(2)(B)(iv)(III). Does this federal statutory provision pre-empt the Michigan law? We conclude that the Michigan fee requirement is not the kind of “State registration requirement” to which the federal statute refers. And for that reason, the statute does not pre-empt it. I A Federal law has long required most motor carriers doing interstate business to obtain a permit — which we shall call a Federal Permit — that reflects compliance with certain federal requirements. See 49 U. S. C. § 13901 et seq.; 49 CFR § 365.101 et seq. (2004). In 1965, Congress authorized States to require proof that the operator of an interstate truck had secured a Federal Permit. 49 U. S. C. § 302(b)(2) (1976 ed.); see generally Yellow Transp., Inc. v. Michigan, 537 U. S. 36, 39 (2002). By 1991, 39 States demanded such proof by requiring some form of what we shall call State Registration (of the Federal Permit). Those States typically would require truckers to file with a state agency evidence that each interstate truck was covered by a Federal Permit. They would require the trucker to pay a State Registration fee of up to $10 per truck. And they would issue a State Registration stamp that the trucker would affix to a multistate “bingo card” carried within the vehicle. See 49 CFR §§ 1023.32, 1023.33 (1990); Yellow Transp., 537 U. S., at 39. In 1991, Congress focused upon the fact that the “bingo card” system required a trucking company to obtain a separate stamp from each State through which an interstate truck traveled. It found this scheme inefficient and burdensome. See id., at 39-40. And it enacted a statute setting forth a new system, the Single State Registration System (SSRS), which remains in effect today. Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), 49 U. S. C. § 14504. The SSRS allows a trucking company to fill out one set of forms in one State (the base State), and by doing so to register its Federal Permit in every participating State through which its trucks will travel. § 14504(c); 49 CFR § 367.4(b) (2004). The SSRS statute says that the base State can demand: (1) proof of the trucking company’s possession of a Federal Permit, (2) proof of insurance, (3) the name of an agent designated to receive “service of process,” and (4) a total fee (charged for the filing of the proof of insurance) equal to the sum of the individual state fees. 49 U. S. C. §§ 14604(c)(2)(A)(i)-(iv); 49 CFR §§ 367.4(c)(1)-(4) (2004). Each individual state fee, it adds, cannot exceed the amount the State charged under the “bingo card” system, and in no event can it exceed $10 per truck. 49 U. S. C. § 14504(c) (2)(B)(iv)(III). After a truck owner registers, base state officials provide the owner with a receipt to be kept in the cab of each registered truck. 49 CFR §§ 367.5(a), (b), (e) (2004). The base State distributes to each participating State its share of the total registration fee. § 367.6(a). The SSRS statute specifies that a State may not impose any additional “registration requirement.” It states specifically, in the statutory sentence at issue here, that when a State Registration requirement imposes further obligations, “the part in excess is an unreasonable burden.” 49 U. S. C. § 14504(b). It adds that a State may not require “decals, stamps, cab cards, or any other means of registering... specific vehicles.” § 14504(c)(2)(B)(iii). And it provides that the “charging or collection of any fee under this section that is not in accordance with the fee system established [in this provision] shall be deemed to be a burden on interstate commerce.” § 14504(c)(2)(C). At the same time, the statute makes clear that a State that complies with the SSRS system need not fear Commerce Clause attack, for it says that a state requirement that an interstate truck “must register with the State” is “not an unreasonable burden on transportation,” provided that “the State registration is completed” in accordance with the SSRS statute. § 14504(b). B The state law at issue here, §478.2(2) of the Michigan Motor Carrier Act, reads as follows: “A motor carrier licensed in this state shall pay an annual fee of $100.00 for each vehicle operated by the motor carrier which is registered in this state [i e., which has a Michigan license plate] and operating entirely in interstate commerce.” Related state rules and regulations require a carrier paying the $100 fee to identify each interstate truck by make, type, year, serial number, and unit number. See Equipment List Form P-344-T, App. to Defendant’s Response to Plaintiffs’ Motion for Summary Disposition in No. 95-15628-CM etc. (Mich. Ct. Cl.) (hereinafter Equipment List Form P-344-T). They also make clear that, upon payment of the fee, the carrier will receive a decal that must be affixed to the truck. App. 24 (Affidavit of Pub. Serv. Comm’n. official Thomas R. Lonergan). And they provide that a carrier who pays this fee need not pay the $10 SSRS registration fee if the carrier chooses Michigan as its SSRS base State. See, e.g., id., at 67, n.; Westlake Transp., Inc. v. Michigan Pub. Serv. Comm’n, 255 Mich. App. 589, 603-604, n. 6, 662 N. W. 2d 784, 790-792, n. 6 (2003); Reply Brief for Petitioners 14-15, n. 8. C Petitioners are interstate trucking companies with trucks that bear Michigan license plates and operate entirely in interstate commerce. Hence they are subject to Michigan’s $100 fee. MCL § 478.2(2) (West 2002). They asked a Michigan court to invalidate § 478.2(2) as pre-empted by the federal SSRS statute. 255 Mich. App., at 592, 662 N. W. 2d, at 789-790. The Michigan Court of Claims rejected their claim. Id., at 593-594, 662 N. W. 2d, at 789-790. And the Michigan Court of Appeals affirmed. Id., at 604, 662 N. W. 2d, at 795. The Court of Appeals wrote that the $100 fee is a “regulatory fee” — a “fee imposed for the administration” of the State’s Motor Carrier Act and for enforcement of Michigan “safety regulations.” Ibid. As such, it falls outside the scope of the term “registration requirement” as used in the federal SSRS statute, 49 U. S. C. § 14504(b). 255 Mich. App., at 604, 662 N. W. 2d, at 795. The federal statute, according to the Michigan court, consequently does not pre-empt it. Ibid. Petitioners sought leave to appeal to the Michigan Supreme Court; leave was denied. Westlake Transp., Inc. v. Michigan Pub. Serv. Comm’n, 469 Mich. 976, 673 N. W. 2d 752 (2003). We granted their petition for certiorari and consolidated the case with American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm’n, ante, p. 429, a case in which interstate truckers sought review of a separate Michigan fee. We now affirm the Michigan court’s judgment in this case, though for other reasons. II A The first legal question before us concerns the meaning of the federal statutory words “State registration requirement.” They appear in a subsection that reads in relevant part as follows: “The requirement of a State that a motor carrier, providing [interstate transportation] in that State, must register with the State is not an unreasonable burden on transportation... when the State registration is completed under standards of the Secretary [of Transportation] under subsection (c). When a State registration requirement imposes obligations in excess of the standards of the Secretary, the part in excess is an unreasonable burden.” 49 U. S. C. § 14504(b) (emphasis added). What is the scope of the italicized words? Petitioners ask us to give these words a broad interpretation, sweeping within their ambit every state requirement involving some form of individualized registration that affects an interstate motor carrier. Brief for Petitioners 15 (federal statute’s limits apply “to all interstate motor carriers compelled to register their operations with any State regulatory commission under any State law” (emphasis in original)). The United States argues for a somewhat narrower interpretation, submitting that the words apply to “state registration requirements that are imposed on interstate carriers by reason of their operation in interstate commerce.” Brief for United States as Amicus Curiae 19-20 (emphasis in original). In our view, however, the language, read in context, is yet more narrow. Reference to text, historical context, and purpose discloses that the words “State registration requirement” do not apply to every State Registration requirement that happens to cover interstate carriers, nor to every such requirement specifically focused on a trucking operation’s interstate character. Rather, they apply only to those state requirements that concern SSRS registration — that is, registration with a State of evidence that a carrier possesses a Federal Permit, registration of proof of insurance, or registration of the name of an agent “for service of process.” § 14504(c)(2)(A)(iv). Thus, the federal provision pre-empts only those state requirements that (1) concern the subject matter of the SSRS and (2) are “in excess” of the requirements that the SSRS imposes in respect to that subject matter. See § 14504(b). To begin with, statutory language makes clear that the federal provision reaches no further. Section 14504(b)’s first sentence says that a state “requirement” that an interstate motor carrier must “register with the State is not an unreasonable burden... when the State registration is completed under standards of the Secretary under subsection (c).” Ibid. It is clear from the text as a whole that “State registration” cannot cover all registration requirements, but only some. Cf. post, at 464-465 (Kennedy, J., dissenting). The first sentence’s reference to the “standards of the Secretary” (as well as the focus of the entire statute) tells us which. Those “standards,” set forth in subsection (c) — which is titled “Single State Registration System” — exclusively relate to State Registration of “evidence of” a Federal Permit, “proof of” insurance, and the “name of a local agent for service of process,” and state fees “for the filing of proof of insurance.” §§ 14504(c)(2)(A)(i)-(iv); § 14504(c)(2)(B)(iv). And the rest of the statute similarly deals exclusively with SSRS matters. See § 14504(a) (“standards” mean “the specification of forms and procedures required” to prove that a motor carrier is in compliance with federal requirements). Thus, the words “State registration” in the pre-emption provision’s first sentence refer only to state systems that seek evidence that a trucker has complied with specific, federally enumerated, SSRS obligations. Cf. 49 U. S. C. § 13908(d) (§ 14504’s fees relate specifically to state efforts to obtain proof of insurance under the SSRS); §§ 13908(b)(2) — (3) (indicating that § 14504 refers to state requirements having this purpose). How could the same words in the second sentence refer to something totally different? We have found no language here or elsewhere in the statute (which we reproduce in the Appendix, infra) suggesting that the term “State registration requirement” in sentence two refers to all State Registration requirements “imposed on interstate carriers by reason of their operation in interstate commerce.” Brief for United States as Amicus Curiae 20 (emphasis in original). Indeed, to read the words “by reason of... ” into § 14504, a linguistic stretch, would be wholly inconsistent with the statute’s basic purposes, because it would leave a State free to implement a regulation in excess of specific SSRS limitations as long as it did not single out interstate carriers (say, a neutral rule that all truckers must pay $50, or $500, per truck for proof of insurance, or must designate multiple agents for service of process). See post, at 463 (Kennedy, J., dissenting). To avoid this severely incongruous result, the dissent (which adopts the Government’s view) must resort to interpretive acrobatics. After first reading subsection (b) to say that a neutral base state requirement, despite being “in excess” of SSRS standards, is not an “unreasonable burden on” commerce, it then reads subsection (c) to say that such a requirement, because it is “in excess” of SSRS standards, is nonetheless prohibited by the statute (in effect, an unreasonable burden on commerce). Post, at 466-468. Aside from imposing significant complexities on the statute where otherwise none would exist, this reading stretches subsection (c)’s function beyond that which its structure and language will allow. Similarly, we see no language elsewhere in the statute suggesting that the term “State registration requirement” refers to any kind of State Registration whatsoever that might affect interstate carriers. And even the Government concedes that certain registration obligations — those in “traditional areas of state regulation” — are beyond the preemptive reach of the statute. Brief for United States as Amicus Curiae 19. Finally, the implementing regulations do not support these broader constructions. See 49 CFR §367.1 et seq. (2004). Our reading of the text finds confirmation in historical context. Congress enacted §14504 to simplify the old “bingo card” system. See Yellow Transp., 537 U. S., at 39-40. Under the “bingo card” scheme, each State could independently demand the same separate filings (evidence of a Federal Permit, proof of insurance, and a service-of-process agent) as well as separate fees. 49 U. S. C. § 302(b)(2) (1976 ed.); §11506 (1988 ed.); 49 CFR §§ 1023.11, 1023.21, 1023.32, 1023.51 (1990). Federal law governing that scheme placed no express constraints on any state filings or fees other than those concerning Federal Permit and insurance requirements. Indeed, federal regulations specified that the federal “bingo card” statute did not “affect” the “collection or [the] method of collection of taxes or fees by a State” from interstate truckers “for the operation of vehicles within” its “borders.” § 1023.104. And they further provided that the statute did not “affect” state requirements “as to the external identification of vehicles to indicate the payment of a State tax or fee imposed for revenue purposes or for any other purpose” not governed by the “bingo card” system. §1023.42. When Congress created the new SSRS, it did not indicate (in the text, structure, or divinable purpose of the new provision) that the pre-emptive scope of the new scheme would be any broader than that of the old. See ISTEA, 105 Stat. 1914. The relevant differences between the SSRS and the “bingo card” regime were that: (1) one State, rather than many, would collect the relevant filings; (2) one State, rather than many, would collect the relevant fees; and (3) these fees, limited to the same amount as before, would relate to filing of proof of insurance rather than to filing of the Federal Permit. Compare 49 U. S. C. § 11506 (1988 ed.) with § 14504 (2000 ed.); see also § 11506 (1988 ed., Supp. IV). These modifications merely sought more efficient, not greater, federal regulation. See Yellow Transp., supra; see also 49 U. S. C. §§ 13908(a), (d) (authorizing the Secretary to replace the SSRS with a yet more streamlined system and pre-empting only those State “insurance filing requirements or fees that are for the same purposes as filings or fees the Secretary requires under the new system” (emphasis added)). And while the new regulations implementing the SSRS do not explicitly exempt unrelated state requirements from the statute’s pre-emptive reach, neither they nor the rulemaking that produced them suggest any change to pre-existing practice in this respect. See 49 CFR §367.1 et seq. (2004); see also Single State Insurance Registration, 9 I. C. C. 2d 610 (1993) (Interstate Commerce Commission decision announcing new regulations); Single State Insurance Registration, No. MC-100 (Sub-No. 6), 1993 WL 17833 (I. C. C., Jan. 13, 1993) (proposing regulations, providing justifications, and soliciting farther comments). Finally, we have found nothing in the statute’s basic purposes or objectives — improving the efficiency of the “bingo card” system and simplifying a uniform scheme for providing States with certain vital information — that either requires a broader reading of the statutory term, or that impliedly pre-empts other, non-SSRS-related state rules. Cf. Geier v. American Honda Motor Co., 529 U. S. 861, 881 (2000) (federal statutes by implication pre-empt state law that stands “as an obstacle to the accomplishment and execution” of their federal objectives (internal quotation marks omitted)). That is, we can find no indication that Congress sought to use this narrowly focused statute to forbid state fee or registration obligations that have nothing to do with basic SSRS (or earlier “bingo card”) objectives — say, for example, a State Registration requirement related to compliance by interstate carriers with rules governing the introduction of foreign pests into the jurisdiction, or with a State’s version of the Amber Alert system, or with size, weight, and safety standards. The Constitution’s Commerce Clause may (or may not) forbid some such rules. But this statute — which identifies and regulates very specific items — says nothing about them, and there is no reason to believe that Congress wished to resolve that kind of Commerce Clause issue in this provision. Cf. 49 U. S. C. § 13908 (indicating that the SSRS may well be only a temporary system and similarly focusing on limited, federally enumerated requirements without discussing broad pre-emption). We conclude, as we have said, that the term “State registration requirement,” as used in the second sentence of the SSRS statute, covers only those State Registration requirements that concern the subject matter of that statutory provision, namely, the registration of a Federal Permit, proof of insurance, and the name of an agent for service of process. See supra, at 446-447. It neither explicitly nor implicitly reaches unrelated matters. B The second legal question involves the Michigan statute imposing the $100 fee on Michigan-plated trucks operating entirely in interstate commerce. MCL §478.2(2) (West 2002). Do the requirements set forth in that statute concern the SSRS statute’s subject matter? We think that they do not. For one thing, the Michigan statute imposing the $100 fee makes no reference to evidence of a Federal Permit, to any insurance requirement, or to an agent for receiving service of process. Nor, as far as we can tell, do any state rules related to the $100 fee require the filing of information about these matters. See Equipment List Form P-344-T (requiring information about truck make, type, year, unit number, and serial number). For another thing, Michigan law imposed a separate fee on interstate motor carriers with trucks license plated in Michigan before the SSRS existed and before Michigan began to participate in the “bingo card” system. See App. 24-25; Plaintiffs’ Second Motion for Partial Summary Disposition in No. 95-15628-CM etc. (Mich. Ct. Cl.), p. 5; Plaintiffs-Appellants’ Brief on Appeal, in No. 226052 etc. (Mich. Ct. App.), pp. 5-6; MCL § 478.7(4) (West 2002). Hence such a fee does not represent an effort somehow to circumvent the limitations imposed in connection with federal laws governing State Registration of Federal Permits. Finally, Michigan rules provide that a Michigan-plated interstate truck choosing Michigan as its SSRS base State can apparently comply with Michigan’s SSRS requirements even if it does not comply with Michigan’s $100 fee requirement. The owner of that truck can fill out Michigan form RS-1, thereby providing Michigan with evidence that it has a Federal Permit. App. 65-66. It can also fill out form RS-2, on which it indicates the total SSRS fees it owes to all participating States whose borders the truck will cross. Id., at 67. Upon submission of the two forms and payment of the fees, Michigan apparently will give the owner form RS-3, an SSRS receipt, a copy of which the owner can place in the vehicle of the truck, thereby complying with Michigan’s (and all other participating States’) SSRS-related “State registration requirements.” If that owner fails to pay Michigan’s $100 fee for that truck, the owner will not receive a state fee decal. But that owner will have violated only Michigan’s $100 fee statute here at issue, MCL §478.2(2) (West 2002). Petitioners have provided us with nothing that suggests the owner will have violated any other provision of Michigan law. See § 478.7(4). And they have not demonstrated that Michigan law in practice holds hostage a truck owner’s SSRS compliance until the owner pays §478.2(2)’s $100 fee. On the other hand, we recognize that Michigan form RS-2, the form that lists all SSRS-participating States together with their SSRS-related fees, places an asterisk next to Michigan and states that “[vjehicles base-plated in Michigan need not” pay any SSRS fee but “are required to have a $100.00” Michigan decal. App. 67. Michigan thereby forgives Michigan-plated interstate trucks (which must pay Michigan $100) payment of the $10 Michigan SSRS fee that would otherwise be due. And to that extent, there is a connection between the $100 fee and the SSRS. Michigan appears to forgive its $10 SSRS fee, however, only for the Michigan-plated interstate trucks of a carrier that has chosen Michigan as its SSRS “base” State. See Reply Brief for Petitioners 14-15, n. 8. Michigan-plated trucks operating out of a different SSRS base State, say, Ohio, must pay the fee, which is remitted back to Michigan. Thus, the $10 reduction can be seen simply as an effort to provide modest, administratively efficient (because Michigan itself is handling both fees) recompense to those motor carriers that operate Michigan-plated trucks and choose Michigan as their SSRS base State. That subsidiary connection cannot transform Michigan’s $100 fee, which exclusively involves non-SSRS subject matter (and was created for non-SSRS-related reasons), into a requirement that concerns the subject matter of the SSRS statute. * * * For these reasons, we conclude that 49 U. S. C. § 14504(b) does not pre-empt Michigan’s $100 fee. The judgment of the Michigan Court of Appeals is affirmed. It is so ordered. APPENDIX TO OPINION OF THE COURT Title 49 U. S. C. § 14504 provides: “Registration of motor carriers by a State “(a) Definitions. — In this section, the terms ‘standards’ and ‘amendments to standards’ mean the specification of forms and procedures required by regulations of the Secretary to prove the lawfulness of transportation by motor carrier referred to in section 13501. “(b) General Rule. — The requirement of a State that a motor carrier, providing transportation subject to jurisdiction under subchapter I of chapter 135 and providing transportation in that State, must register with the State is not an unreasonable burden on transportation referred to in section 13501 when the State registration is completed under standards of the Secretary under subsection (c). When a State registration requirement imposes obligations in excess of the standards of the Secretary, the part in excess is an unreasonable burden. “(c) Single State Registration System.— “(1) In general. — The Secretary shall maintain standards for implementing a system under which— “(A) a motor carrier is required to register annually with only one State by providing evidence of its Federal registration under chapter 139; “(B) the State of registration shall fully comply with standards prescribed under this section; and “(C) such single State registration shall be deemed to satisfy the registration requirements of all other States. “(2) Specific requirements.— “(A) Evidence of federal registration; proof OF insurance; payment of fees. — Under the standards of the Secretary implementing the single State registration system described in paragraph (1) of this subsection, only a State acting in its capacity as registration State under such single State system may require a motor carrier registered by the Secretary under this part— “(i) to file and maintain evidence of such Federal registration; “(ii) to file satisfactory proof of required insurance or qualification as a self-insurer; “(iii) to pay directly to such State fee amounts in accordance with the fee system established under subpara-graph (B)(iv) of this paragraph, subject to allocation of fee revenues among all States in which the carrier operates and which participate in the single State registration system; and “(iv) to file the name of a local agent for service of process. “(B) Receipts; pee system. — The standards of the Secretary— “(i) shall require that the registration State issue a receipt, in a form prescribed under the standards, reflecting that the carrier has filed proof of insurance as provided under subparagraph (A)(ii) of this paragraph and has paid fee amounts in accordance with the fee system established under clause (iv) of this subparagraph; “(ii) shall require that copies of the receipt issued under clause (i) of this subparagraph be kept in each of the carrier’s commercial motor vehicles; “(iii) shall not require decals, stamps, cab cards, or any other means of registering or identifying specific vehicles operated by the carrier; “(iv) shall establish a fee system for the filing of proof of insurance as provided under subparagraph (A)(ii) of this paragraph that— “(I) is based on the number of commercial motor vehicles the carrier operates in a State and on the number of States in which the carrier operates; “(II) minimizes the costs of complying with the registration system; and “(III) results in a fee for each participating State that is equal to the fee, not to exceed $10 per vehicle, that such State collected or charged as of November 15, 1991; and “(v) shall not authorize the charging or collection of any fee for filing and maintaining evidence of Federal registration under subparagraph (A)(i) of this paragraph. “(C) Prohibited fees. — The charging or collection of any fee under this section that is not in accordance with the fee system established under subparagraph (B)(iv) of this paragraph shall be deemed to be a burden on interstate commerce. “(D) Limitation on participation by States.— Only a State which, as of January 1, 1991, charged or collected a fee for a vehicle identification stamp or number under part 1023 of title 49, Code of Federal Regulations, shall be eligible to participate as a registration State under this subsection or to receive any fee revenue under this subsection.” Justice Kennedy, with whom The Chief Justice and Justice O’Connor join, dissenting. The Michigan Court of Appeals, in my view, erred in holding that Mich. Comp. Laws Ann. §478.2(2) (West 2002) (hereinafter MCL) is not a registration requirement. Westlake Transp., Inc. v. Michigan Pub. Serv. Comm’n, 255 Mich. App. 589, 603-605, 662 N. W. 2d 784, 795 (2003). Our Court, too, errs by concluding that the term “State registration requirement” in 49 U. S. C. § 14504(b) includes only those state registration requirements that “concern the [same] subject matter” as the Single State Registration System (SSRS) established by § 14504(c). Ante, at 447, 451. This respectful dissent explains my reasons for rejecting these two holdings. I Title 49 U. S. C. § 14504(b) provides: “The requirement of a State that a motor carrier, providing [interstate transportation] in that State, must register with the State is not an unreasonable burden on transportation... when the State registration is completed under standards of the Secretary [of Transportation] under [§ 14504(c)]. When a State registration requirement imposes obligations in excess of the standards of the Secretary, the part in excess is an unreasonable burden.” The dispositive question in the instant case is whether MCL §478.2(2) is a “State registration requirement” within the meaning of the second sentence of 49 U. S. C. § 14504(b). The Michigan Court of Appeals said the answer is no because MCL § 478.2(2) is not a registration requirement at all. The Court also says the answer is no, but for a different reason. It concludes that, even though § 478.2(2) is a registration requirement, the term “registration requirement” in 49 U. S. C. § 14504(b) includes only the subset of registration requirements that concern the same subject matter as the SSRS. Neither the Court’s reason, nor the different reason given by the Michigan Court of Appeals, is persuasive. A The Michigan Court of Appeals adopted a categorical rule: “If the purpose of a fee is to regulate an industry or service, it can be properly classified as a regulatory fee,” not a registration fee. 255 Mich. App., at 605, 662 N. W. 2d, at 795. Proceeding to apply the rule so announced, the Court of Appeals held that the $100 fee imposed by MCL § 478.2(2) on Michigan-plated interstate carriers is a regulatory fee rather than a registration fee because the fee is “imposed for the administration of the [Michigan Motor Carrier Act], particularly covering costs of enforcing safety regulations.” Id., at 604, 662 N. W. 2d, at 795. The majority affirms the judgment below, but “for other reasons.” Ante, at 446. The Court’s reluctance to adopt the Michigan Court of Appeals’ rationale is understandable. MCL §478.2(2) and related state rules and regulations require a motor carrier that wants to operate Michigan-plated vehicles in interstate commerce in Michigan to fill out a form providing detailed identifying information for each vehicle and to pay a $100-per-vehicle fee. In return, the State provides the carrier with decals that it must place on its trucks. See ante, at 444-445. If this is not a “State registration requirement” in the general and ordinary sense of the term, it is hard to conceive of what is. The Court of Appeals’ holding would allow the State to convert any registration fee into a regulatory fee simply by declaring a regulatory purpose or spending some portion of the money collected on regulation or administration. The logic of this approach excludes from the coverage of 49 U. S. C. § 14504(b) almost all state requirements, including those dealing with similar subject matter as the SSRS. The purpose of SSRS requirements, after all, is to regulate the interstate motor carrier industry; and the fees collected are used to administer the system. The Court’s disapproval of the Michigan Court of Appeals’ reasoning is implicit in the Court’s decision to affirm on a different ground. Ante, at 446. Yet the Court’s affirmance of the Court of Appeals’ decision, coupled with the Court’s failure to make its apparent disagreement with the reasoning explicit, will result in the Michigan Court of Appeals’ broad rule surviving to work additional mischief in future cases, a most undesirable result in this area, where fees and regulatory requirements are so pervasive. B 1 Although the Court' appears to agree that MCL §478.2(2) imposes a state registration requirement on interstate motor carriers, it holds, nonetheless, that the provision is not preempted by 49 U. S. C. § 14504(b). This, according to the Court, is because the phrase “State registration requirement” in § 14504(b) refers not to state registration requirements generally, but only to those state registration requirements that concern the same subject matter as the SSRS: registration of a federal permit, proof of insurance, and designation of an agent for service of process. Ante, at 451. Section 14504(b) simply cannot bear the narrowing construction the Court seeks to impose upon it. The first sentence of § 14504(b) authorizes States to impose registration requirements on interstate motor carriers if the registration “is completed under standards of the Secretary under [§ 14504(c)],” i. e., under the SSRS. The second sentence of § 14504(b) pre-empts “a State registration requirement” that imposes “obligations in excess” of the SSRS. There ought to be no question that MCL § 478.2(2) is a state registration requirement. The Court seems to agree, at least when the phrase “State registration requirement” is used in its ordinary and general sense. It should also be apparent that the obligations imposed by § 478.2(2) are in excess of those authorized by the standards of the Secretary under 49 U. S. C. § 14504(c). The plain text of § 14504(b), then, would appear to pre-empt MCL §478.2(2), at least when § 478.2(2) is considered in isolation. The Court, however, departs from the text of the statute. Title 49 U. S. C. § 14504(b), by its terms, saves from preemption only one class of state registration requirements imposed on interstate motor carriers: those completed under standards of the Secretary under § 14504(c), i. e., those that are authorized under the SSRS. To this subset the Court adds a second class of state registration requirements saved from pre-emption: those that concern subject matters not covered under § 14504(c). The problem, of course, is that the statute simply does not provide for the exemption the Court invents. There is no basis in the statutory text or structure for adding this limitation, and the Court cannot carry its heavy burden Question: What is the issue of the decision? A. federal-state ownership dispute (cf. Submerged Lands Act) B. federal pre-emption of state court jurisdiction C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does. D. Submerged Lands Act (cf. federal-state ownership dispute) E. national supremacy: commodities F. national supremacy: intergovernmental tax immunity G. national supremacy: marital and family relationships and property, including obligation of child support H. national supremacy: natural resources (cf. natural resources - environmental protection) I. national supremacy: pollution, air or water (cf. natural resources - environmental protection) J. national supremacy: public utilities (cf. federal public utilities regulation) K. national supremacy: state tax (cf. state tax) L. national supremacy: miscellaneous M. miscellaneous federalism Answer:
sc_casedisposition	C	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. SNAPP v. NEAL, STATE AUDITOR, et al. No. 16. Argued November 15-16, 1965. Decided January 18, 1966. Leon D. Hubert, Jr., argued the cause for petitioner. With him on the briefs was Carl J. Felth. Martin R. McLendon, Assistant Attorney General of Mississippi, argued the cause for respondents. With him on the brief was Joe T. Patterson, Attorney General. Acting Solicitor General Spritzer, Acting Assistant Attorney General Jones and I. Henry Kutz filed a brief for the United States, as amicus curiae, urging reversal. Mr. Justice Brennan delivered the opinion of the Court. This is a companion case to California v. Buzará, ante, p. 386, decided today. The State of Mississippi levied an ad valorem tax against a house trailer of the petitioner, Sergeant Jesse E. Snapp. Sergeant Snapp was stationed under military orders at Crystal Springs Air Force Base, Mississippi. He bought the trailer in Mississippi and moved it on Mississippi highways to a private trailer park near the Air Force Base where he placed it on movable concrete blocks and used it as a home. He did not register or license the trailer, or pay any taxes on it in his home State of South Carolina. He challenged the Mississippi tax as a tax on his personal property prohibited by the Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stat. 1178, as amended in 1944, § 514, 50 U. S. C. App. § 574. The Mississippi Supreme Court sustained the levy on the ground that, as applied to motor vehicles, § 514 (2) (b) conditions the nonresident serviceman’s immunity from its ad valorem tax on the serviceman’s prior payment of the fees imposed by his home State. The court reasoned that since § 514 (2) (b) “stipulates] expressly that the taxation should not be limited to privilege and excise taxes, it necessarily follows that the prohibited tax must include the only other general branch of taxation, that is, ad valorem. It is emphasized that the federal statute is meant to include ad valorem taxes as being one of the taxes for which the serviceman is immune, -provided he complies with the laws of his home state concerning registration of the motor vehicle. If he fails to so comply, as was done in this case at bar, he is no longer entitled to protection of the Act of Congress.” 250 Miss. 597, at 614-615, 164 So. 2d 752, at 760. We granted certiorari, 380 U. S. 931. We reverse on the authority of our holding today in Buzará that the failure to pay the motor vehicle “license, fee, or excise” of the home State entitles the host State only to exact motor vehicle taxes qualifying as “licenses, fees, or excises”; the ad valorem tax, as the Mississippi Supreme Court acknowledged, is not such an exaction. We thus have no occasion to decide whether the Mississippi Supreme Court was correct in holding that the house trailer was a “motor vehicle” within the meaning of §514(2)(b). Reversed. The relevant text of the statute is in California v. Buzard, ante, p. 388, n. 1. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
sc_decisiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. CONNECTICUT v. MENILLO No. 74-1569. Decided November 11, 1975 Per Curiam. In 1971 a jury convicted Patrick Menillo of attempting to procure an abortion in violation of Connecticut’s criminal abortion statute. Menillo is not a physician and has never had any medical training. The Connecticut Supreme Court nevertheless overturned Menillo’s conviction, holding that under the decisions in Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), the Connecticut statute was “null and void.” As we think the Connecticut court misinterpreted Roe and Doe, we grant the State’s petition for certiorari and vacate the judgment. The statute under which Menillo was convicted makes criminal an attempted abortion by “any person.” The Connecticut Supreme Court felt compelled to hold this statute null and void, and thus incapable of constitutional application even to someone not medically qualified to perform an abortion, because it read Roe to have done the same thing to the similar Texas statutes. But Roe did not go so far. In Roe we held that Tex. Penal Code, Art. 1196, which permitted termination of pregnancy at any stage only to save the life of the expectant mother, unconstitutionally restricted a woman’s right to an abortion. We went on to state that as a result of the unconstitutionality of Art. 1196 the Texas abortion statutes had to fall “as a unit,” 410 U. S., at 166, and it is that statement which the Connecticut Supreme Court *and courts in some other States have read to require the invalidation' of their own statutes even as applied to abortions performed by nonphysicians. In context, however, our statement had no such effect. Jane Roe had sought to have an abortion “ 'performed by a competent, licensed physician, under safe, clinical conditions,’ ” id., at 120, and our opinion recognized only her right to an abortion under those circumstances. That the Texas statutes fell as a unit meant only that they could not be enforced, with or without Art. 1196, in contravention of a woman’s right to a clinical abortion by medically competent personnel. We did not hold the Texas statutes unenforceable against a nonphysician abortionist, for the case did not present the issue. Moreover, the rationale of our decision supports continued enforceability of criminal abortion statutes against nonphysicians. Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester because neither its interest in maternal health nor its interest in the potential life of the fetus is sufficiently great at that stage. But the insufficiency of the State’s interest in maternal health is predicated upon the first trimester abortion’s being as safe for the woman as normal childbirth at term, and that predicate holds true only if the abortion is performed by medically competent personnel under conditions insuring maximum safety for the woman. See 410 U. S., at 149-150, 163; cf. statement of Douglas, J., in Cheaney v. Indiana, 410 U. S. 991 (1973), denying certiorari in 259 Ind. 138, 285 N. E. 2d 265 (1972). Even during the first trimester of pregnancy, therefore, prosecutions for abortions conducted by nonphysicians infringe upon no realm of personal privacy secured by the Constitution against state interference. And after the first trimester the ever-increasing state interest in maternal health provides additional justification for such prosecutions. As far as this Court and the Federal, Constitution are concerned, Connecticut’s statute remains fully effective against performance of abortions by nonphysicians. We express no view, of course, as to whether the same is now true under Connecticut law. Accordingly, the petition for certiorari is granted, the judgment of the Supreme Court of Connecticut is vacated, and the case is remanded to that court for its further consideration in light of this opinion. So ordered. Mr. Justice White concurs in the result. Conn. Gen. Stat. Rev. § 53-29: “Any person who gives or administers to any woman, or advises or causes her to take or use anything, or uses any means, with intent to procure upon her a miscarriage or abortion, unless the same is necessary to preserve her life or that of her unborn child, shall be fined not more than one thousand dollars or imprisoned in the State Prison not more than five years or both.” See, e. g., State v. Hultgren, 295 Minn. 299, 204 N. W. 2d 197 (1973); Commonwealth v. Jackson, 454 Pa. 429, 312 A. 2d 13 (1973). The highest courts of other States have held that their criminal abortion laws can continue to be applied to laymen following Roe and Doe. E. g., People v. Bricker, 389 Mich. 524, 208 N. W. 2d 172 (1973); State v. Norflett, 67 N. J. 268, 237 A. 2d 609 (1975). Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re M.S.V., INC., Martin Specialty Vehicles, Inc., Debtors. M.S.V., INC., Plaintiff, Appellant, v. BANK OF BOSTON—WESTERN MASSACHUSETTS, N.A., Defendant, Appellee. No. 89-1341. United States Court of Appeals, First Circuit. Heard Nov. 6, 1989. Decided Dec. 15, 1989. David M. Nickless, with whom Nickless and Phillips, Fitchburg, Mass., was on brief, for plaintiff, appellant. Francis H. Fox with whom Lawrence S. Buonomo, Bingham, Dana & Gould, Boston, Mass., Maurice M. Cahillane and Egan Flanagan & Egan, P.C., Springfield, Mass., were on brief, for defendant, appellee. Before BREYER, Circuit Judge, VAN GRAAFEILAND, Senior Circuit Judge, and SELYA, Circuit Judge. Of the Second Circuit, sitting by designation. BREYER, Circuit Judge. M.S.V., Inc., the appellant, borrowed money from the appellee, the Bank of Boston. It gave the Bank a secured interest in company assets as collateral. In early 1986 the Bank foreclosed, seized the collateral, sold it, and eventually placed the proceeds — about $20,000 — in escrow. M.S.V. filed for Chapter 11 bankruptcy, sued the Bank in state court, and brought a similar suit in federal bankruptcy court. It basically claimed that the Bank, in foreclosing, broke its contract and violated a host of state tort and unfair business practice laws; it also asked the federal bankruptcy court to order the Bank to turn over the $20,000 collateral proceeds, which, it said, belonged to it. The bankruptcy court decided it lacked jurisdiction to hear most of the state claims, but it heard the “breach of contract” claim and awarded M.S.V. about $560,000 in damages. The Bank appealed the $560,000 award to the federal district court. 97 B.R. 721 (1989). 28 U.S.C. § 158(a). That court noted that the damage award rested upon a state law (breach of contract) cause of action that arose before M.S.V.’s bankruptcy; it found that the Bank had not consented to the bankruptcy court hearing that claim; and it held that the bankruptcy court therefore lacked jurisdiction to award the damages. See In re Arnold Print Works, Inc., 815 F.2d 165, 167 (1st Cir.1987) (state law claims arising prior to bankruptcy filing are typically “non-core” proceedings that a bankruptcy court can hear only with the parties' consent). M.S.V. now appeals this district court determination to us. We must dismiss this appeal because the district court order from which M.S.V. appeals is not “final.” 28 U.S.C. § 158(d); 28 U.S.C. § 1291. The district court order remands the case to the bankruptcy court, and the parties have stipulated that the bankruptcy court must now decide at least two related matters: 1) whether the Bank or M.S.V. is entitled to the $20,000 proceeds from the sale of the collateral, and 2) whether the Bank’s claim against M.S.V. should be equitably subordinated to the claims of other M.S.V. creditors. See 11 U.S.C. § 510(c). These further matters are part of, or closely related to, M.S.V.’s basic dispute with the Bank; they do not involve the totally unrelated claim of some other creditor to M.S.V. assets; and they require significantly more than simply “ministerial” bankruptcy court activity. Thus, prior case law in this circuit makes clear that M.S.V. cannot now appeal. See In re Saco Local Development Corp., 711 F.2d 441, 445-46 (1st Cir.1983) (“a 'proceeding’ within a bankruptcy case,” not the entire case, is “the relevant ‘judicial unit’ for purposes of finality;” judgment is “final” when it “conclusively determines [such] a separable dispute over a creditor’s claim or priority”); Tringali v. Hathaway Machinery Co., 796 F.2d 553, 558 (1st Cir.1986) (same); In re American Colonial Broadcasting Corp., 758 F.2d 794, 801 (1st Cir.1985) (same); In re Gould & Eberhardt Gear Machinery Corp., 852 F.2d 26, 29 (1st Cir.1988) (district court determination in respect to such a separable dispute is not “final” when the court remands the case for “further proceedings” that are “significant” and not “only ministerial”). The district court determination about the $562,000 damage award is not appealable as a “collateral” order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), because it is neither “completely separate from the merits” of M.S.V.’s bankruptcy court action against the Bank, nor “effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). M.S.V. also asks us to order the district court to assess sanctions against the Bank for having filed a district court brief of maximum permitted length (50 pages), but which contained “eighty-five lineal inches of single spaced footnotes and no true statement of facts.” We agree with the Bank that whether or not to assess such sanctions is a matter for the district court. We also note, however, that the Bank (after obtaining permission) filed an overly long (sixty instead of fifty) page brief in this court. Having studied that brief, we can find no reason for its unusual length; indeed, despite that length it failed to explain clearly to us just what had happened in the courts below. We have learned, through experience, that it is typically the shorter briefs that are the most helpful, perhaps because the discipline of compression forces the parties to explain clearly and succinctly what has happened, the precise legal issue, and just why they believe the law supports them. Be that as it may, we believe it appropriate to discourage the filing of excessively lengthy briefs in this court. Although it is difficult to determine whether length is excessive before we hear a case, we have a more educated view thereafter. Consequently, whether or not we grant permission to file an overly long brief, we may assess special costs if we subsequently conclude that the extra length was unnecessary and did not help. Since M.S.V.’s request for sanctions and the district court’s adverse comments should have alerted the Bank’s counsel to his briefing problem, we shall assess double costs in this case against the Bank. Appeal dismissed without prejudice. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_authoritydecision	D	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence. UNITED STATES v. NUGENT. NO. 540. Argued May 1, 4, 1953. Decided June 8, 1953. Robert W. Ginnane argued the cause for the United States. With him on the brief were Acting Solicitor General Stern and Beatrice Rosenberg. Hayden C. Covington argued the cause for respondents. With him on the brief was Herman Adler stein. Mr. Chief Justice Vinson delivered the opinion of the Court. Section 6 (j) of the Selective Service Act provides exemption from military service — partial or full, depending upon the circumstances — for any person “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” If the conscientious objector’s claim for relief under this Section is denied by his local draft board, he is entitled to further review by an “appropriate appeal board.” All such appeals are referred to the Department of Justice for an “appropriate inquiry” and a “hearing.” The Department of Justice then makes a recommendation to the appeal board, which may or may not follow it in reviewing the local board’s classification. These two cases are concerned with the procedure, established by regulation and practice, which is followed when a conscientious objector’s appeal is referred to the Department of Justice. The Department has regularly used the FBI to investigate each appealing registrant’s background and reputation for sincerity. A hearing is then held before a designated “hearing officer.” The registrant is allowed to appear in person, and, if he chooses, he may bring with him an advisor and witnesses to testify in his behalf. Upon request, he is entitled to be instructed “as to the general nature and character” of any “unfavorable” evidence developed by the Depart-meat’s investigation. But he is not permitted to see the FBI report, nor is he informed of the names of persons interviewed by the investigators. It is the Department’s refusal to disclose the entire FBI reports which precipitates the issues now before us. The Court of Appeals for the Second Circuit has held that this procedure violates a registrant’s rights under the Selective Service Act. We granted certiorari, 345 U. S. 915, because that determination seemed in conflict with the decisions of other Courts of Appeals and because it dealt with an important problem in the administration of the Selective Service Act. Each of the respondents claims to be a conscientious objector entitled to total exemption from military service. Each has been convicted of wilfully refusing to submit to induction in the armed forces of the United States. At their trials, respondents challenged the validity of their selective service classifications, claiming that they were fixed without basis in fact and without adherence to the procedures prescribed by § 6 (j) of the Act; each claimed that the Department of Justice’s failure to show him the FBI reports rendered his classification illegal. The Court of Appeals, reversing each respondent’s conviction, sustained the claims. We think that the Court of Appeals erred. We think that the statutory scheme for review, within the selective service system, of exemptions claimed by conscientious objectors entitles them to no guarantee that the FBI reports must be produced for their inspection. We think the Department of Justice satisfies its duties under § 6 (j) when it accords a fair opportunity to the registrant to speak his piece before an impartial hearing officer; when it permits him to produce all relevant evidence in his own behalf and at the same time supplies him with a fair résumé of any adverse evidence in the investigator’s report. Respondents urge that this is not enough. The argument rides hard upon the word “hearing” in § 6 (j). It is suggested that the “hearing” prescribed by Congress was purposely designed to allow the registrant to refute— item by item, if necessary — the matters discussed in the investigator’s report. In sum, respondents assimilate the “hearing” in § 6 (j) to a trial and insist that it imports a right to confront every informant who may have rendered adverse comment to the FBI. The statute does entitle the registrant to a “hearing,” and of course no sham substitute will meet this requirement; but we do not think that the word “hearing”— when put in the context of the whole scheme for review set forth in § 6 (j) — comprehends the formal and litigious procedures which respondents’ interpretation would attribute to it. Instead, the word takes its meaning in this instance from an analysis of the precise function which Congress has imposed upon the Department of Justice in § 6 (j). The duty to classify — to grant or deny exemptions to conscientious objectors — rests upon the draft boards, local and appellate, and not upon the Department of Justice. The registrant must first look to his local board for the relief he claims; he must convince this body— composed of representatives of his own community — of the depth and sincerity of his convictions. He must fill out forms, calculated to put him to the test; he must supply any additional detailed information which may be necessary for a searching investigation of his claim; and, if he or his local board demands it, he may appear in person to explain his position to the persons charged with determining its validity. If the local board denies the claim, the responsibility for review, if sought, falls upon the appeal board. The Department of Justice takes no action which is decisive. Its duty is to advise, to render an auxiliary service to the appeal board in this difficult class of cases. Congress was under no compulsion to supply this auxiliary service — to provide for a more exhaustive processing of the conscientious objector’s appeal. Registrants who claim exemption for some reason other than conscientious objection, and whose claims are denied, are entitled to no “hearing” before the Department. Yet in this special class of cases, involving as it does difficult analyses of facts and individualized judgments, Congress directed that the assistance of the Department be made available whenever a registrant insists that his conscientious objection claim has been misjudged by his local board. Observers sympathetic to the problems of the conscientious objector have recognized that this provision in the statute improves the system of review by helping the appeal boards to reach a more informed judgment on the appealing registrant’s claims. But it has long been recognized that neither the Department’s “appropriate investigation” nor its “hearing” is the determinative investigation and the determinative hearing in each case. It has regularly been assumed that it is not the function of this auxiliary procedure to provide a full-scale trial for each appealing registrant. Accordingly, the standards of procedure to which the Department must adhere are simply standards which will enable it to discharge its duty to forward sound advice, as expeditiously as possible, to the appeal board. Certainly, this is an important and delicate responsibility, but we do not think the statute requires the Department to entertain an all-out collateral attack at the hearing on the testimony obtained in its prehearing investigation. Respondents urge that they have a right to such a procedure under the Fifth Amendment. We cannot agree. The Selective Service Act is a comprehensive statute designed to provide an orderly, efficient and fair procedure to marshal the available manpower of the country, to impose a common obligation of military service on all physically fit young men. It is a valid exercise of the war power. It is calculated to function — it functions today — in times of peril. Even so, Congress took care to provide special treatment for those who could not reconcile participation in the defense effort with their religious beliefs — if those beliefs were a matter of sincere conviction. Profiting from the experiences of the First World War, Congress adopted a new and special procedure to secure the rights of conscience, which had been given express statutory recognition. It is always difficult to devise procedures which will be adequate to do justice in cases where the sincerity of another’s religious convictions is the ultimate factual issue. It is especially difficult when these procedures must be geared to meet the imperative needs of mobilization and national vigilance — when there is no time for “litigious interruption.” Falbo v. United States, 320 U. S. 549, 554 (1944). Under the circumstances presented, we cannot hold that the statute, as we construe it, violates the Constitution. The judgments are Reversed. Mr. Justice Jackson took no part in the consideration or decision of this case. Section 6 (j) appeared in the 1940 Selective Service Act as § 5 (g), 54 Stat. 885, 889. It was reenacted as § 6 (j) of the Selective Service Act of 1948. 62 Stat. 604, 613, 50 U. S. C. § 456 (j). The Act was amended in 1951, 65 Stat. 75, 86, 50 U. S. C. App. (Supp. V) §456 (j), and the present language of §6 (j) differs in immaterial respects from the language in the earlier statutes. The full text of § 6 (j) of the Selective Service Act of 1948 reads: “Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code. Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title, be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, be deferred. Any person claiming exemption from combatant training and service because, of such conscientious objections shall, if such claim is not sustained by the local board, be entitled to an appeal to the appropriate appeal board. Upon the filing of such appeal, the appeal board shall refer any such claim to the Department of Justice for inquiry and hearing. The Department of Justice, after appropriate inquiry, shall hold a hearing with respect to the character and good faith of the objections of the person concerned, and such person shall be notified of the time and place of such hearing. The Department of Justice shall, after such hearing, if the objections are found to be sustained, recommend to the appeal board that (1) if the objector is inducted into the armed forces under this title, he shall be assigned to noncombatant service as defined by the President, or (2) if the objector is found to be conscientiously opposed to participation in such noncombatant service, he shall be deferred. If after such hearing the Department of Justice finds that his objections are not sustained, it shall recommend to the appeal board that such objections be not sustained. The appeal board shall, in making its decision, give consideration to, but shall not be bound to follow, the recommendation of the Department of Justice together with the record on appeal from the local board. Each person whose claim for exemption from combatant training and service because of conscientious objections is sustained shall be listed by the local board on a register of conscientious objectors.” There is a dearth of legislative history reflecting discussion in Congress about this phase of the Selective Service Act. The problem was discussed rather briefly during the Committee hearings on the 1940 Act. See Hearings Before the Committee on Military Affairs United States Senate on S. 4164, 76th Cong., 3d Sess., and Hearings Before the Committee on Military Affairs House of Representatives on H. R. 10132, 76th Cong., 3d Sess. Compare H. R. Rep. No. 2903, 76th Cong., 3d Sess., p. 5. See 32 CFR § 1626.25 (1949 ed.); see also 17 Fed. Reg. 5449, June 18, 1952. See, Instructions to Registrants Whose Claims for Exemption as Conscientious Objectors Have Been Appealed (a letter sent to the appealing registrant from the office of the Attorney General) reproduced in part in the record in the Nugent case, at p. 54. Ibid. United States v. Nugent, 200 F. 2d 46, and United States v. Packer, 200 F. 2d 540. See e. g., Imboden v. United States, 194 F. 2d 508 (C. A. 6th Cir. 1952); Elder v. United States, 202 F. 2d 465 (C. A. 9th Cir. 1953). 50 U. S. C. App. (Supp. V) § 462. Cox v. United States, 332 U. S. 442 (1947). Estep v. United States, 327 U. S. 114 (1946). As to what constitutes a “fair résumé” see Imboden v. United States, supra. Compare United States v. Oller, 107 F. Supp. 54 (D. Conn. 1952), and United States v. Bouziden, 108 F. Supp. 395 (W. D. Okla. 1952). We need not reach that question in these cases because in our view respondents cannot complain of any failure on the part of the Department of Justice to supply them with a summary of the evidence. Respondent Nugent first indicated to his local board that he would only serve as a noncombatant. Thereafter, when required to submit additional information, he stated that he was opposed to any military service whatsoever. The local board, after a hearing, classified him as 1-A-O which rendered him eligible only for noncombatant military service. He appealed, claiming total exemption. Pursuant to §6 (j) his case was referred to the Department of Justice. Instructions mailed to respondent Nugent informed him of his right to “request” the Hearing Officer to “advise” him of the “general nature and character of any evidence” which was “unfavorable” to his claim. Respondent never requested the Hearing Officer for any summary of the FBI investigation. He claims he was misled by the Hearing Officer’s secretary who told him that the “files” were “favorable.” But respondent made no effort to verify this statement; at no time did he say anything or make any request to the Hearing Officer concerning the FBI report. Moreover, the Hearing Officer, in his own report on the case, said nothing which would indicate that the secretary’s comment was erroneous. He did not purport to base his recommendation on material submitted by the FBI; rather his recommendation seems based upon Nugent’s own conduct and testimony at the hearing coupled with the fact that respondent, in his original classification questionnaire, had indicated a willingness to serve as a noncombatant — the classification to which he had been assigned. An additional statement by a Special Assistant to the Attorney General, forwarding the Hearing Officer’s report to the appeal board, also made no mention that there was adverse matter in the FBI report. No part of the FBI report was transmitted to the appeal board. Thus the record before the appeal board contained no evidence secured by the FBI. In view of this, and in view of his failure to make any request to the Hearing Officer, we think that Nugent was not denied any right. Nor was respondent Packer denied his right to be advised of the general nature of any evidence in the FBI report which might defeat his claim. In response to his question, the Hearing Officer told him that there was nothing unfavorable in it. The Hearing Officer’s report, which was transmitted to the appeal board, corroborates this view. Nothing in the FBI report was transmitted to the appeal board, and thus it was given no indication that the FBI report was unfavorable. See United States v. Geyer, 108 F. Supp. 70 (D. Conn. 1952), an opinion heavily relied upon by the Court of Appeals in its opinion in the Nugent case. Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294 (1933). The Selective Service System requires conscientious objectors to fill out a special form. This form supplies the registrant with the opportunity to demonstrate — -by pointing to past examples, referring to character witnesses and recounting the background of his training and beliefs — the sincerity of his claim. 32 CFR (1949 ed.) Part 1624. See Sibley and Jacob, Conscription of Conscience (1952), 71-76. Cf. Norwegian Nitrogen Products Co. v. United States, supra; Williams v. New York, 337 U. S. 241 (1949). 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_interven	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. Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. SIMS v. JAMISON. No. 7177. Circuit Court of Appeals, Ninth Circuit. Nov. 6, 1933. Joseph, Haney & Yeateh, of Portland, Or., and Watts & Prestbye, of Athena, Or., for appellant. Raley, Raley & Warner, John F. Kilkenny, and Alfred F. Cunha, all of Pendleton, Or., and James H. E. Scott, of Milton, Or., for appellee. Before WILBUR, SAWTELLE, and GARRE CHT, Circuit Judges. WILBUR, Circuit Judge. This is an appeal from an order of the District Court enjoining the appellant from harassing and annoying the bankrupt on account of a certain chattel mortgage given by the bankrupt to M. G. Bentley and later assigned to the First National Bank covering the apple crop grown, or to be grown, on certain real estate, and from foreclosing said chattel mortgage upon the crop grown upon said real estate. This mortgage was executed on December 23, 1930, to secure promissory notes amounting to $600 on his interest in crops grown in 1931, or to be grown thereafter on a five-acre tract of land therein described and owned by the bankrupt. The mortgage provided that, if the crop of 1931 was not sufficient to meet the obligation secured by the mortgage, “then this mortgage shall be deemed to cover the said crops for the year 1932 and all additional years until the amounts advanced unto the mortgagor by the mortgagee herein have been fully paid and satisfied.” The bankrupt filed his voluntary petition in bankruptcy on November 19,1931, setting forth, among others, the foregoing indebtedness. He was adjudicated a bankrupt on that date, and on December 24, 1931, the court entered an order setting apart the above-mentioned real estate containing five aeres as exempt. The bankrupt was discharged on November 23, 1982. The action to foreclose the chattel mortgage was begun in the circuit court of the state of Oregon for Umatilla county in September, 1932, and a criminal information charging the bankrupt with disposing of and selling the apple crop of 1932, which is the means of “harassing and annoying” referred to in the order appealed from, was filed in November, 1932. The bankrupt set forth the foregoing facts, and prayed for a permanent injunction, and for an order declaring the mortgage “void and of no force and effect.” The appellant moved to strike the petition on the ground that the court had no jurisdiction of the subject-matter of the petition, and was without jurisdiction “to try or determine the issues raised by the petition or to grant the relief therein prayed for.” The matter was apparently submitted upon this motion, and the order appealed from was thereupon entered granting the relief prayed for by the petitioner, including a declaration that the chattel mortgage is “of no force or effect as against the above named bankrupt.” It is claimed by the appellant that the question of whether or not crops are subject to a lien, if grown upon exempt property set apart as such by the bankruptcy court, is one wholly for the state courts, to be decided according to state law. That the state law controls in the determination of the right to a lien upon such crops so grown is well established. That the state court has jurisdiction to pass upon the validity and effect of such a lien after an adjudication has been asserted cannot seriously be doubted. Public Finalice Co. v. Rowe, 123 Ohio St. 206, 174 N. E. 738, 74 A. L. R. 900 ; Union National Bank of Minot v. Lenton, 54 N. D. 262, 209 N. W. 350; Thompson Yards v. Richardson, 51 N. D. 241, 199 N. W. 863; Eckhardt v. Hess, 200 Iowa, 1308, 206 N. W. 291, 292. But the question of jurisdiction of the bankruptcy court is not settled by conceding jurisdiction to the state court, nor by conceding that the question is one to be determined according to state law. The bankruptcy court can and should declare the effect of and enforce the state law, if it has jurisdiction of a ease in which the state law is involved. The fundamental question involved is the effect of the discharge in bankruptcy upon the debt secured by chattel mortgage. If, on the one hand, the debt is not secured by an existing lien, the discharge frees the bankrupt from it; if, on the other hand, the debt is secured by an existing lien, it does nor,, and the creditor may foreclose his lien upon the property covered by it. , The question may be decided by either state or federal court according to state law, but the bankruptcy court has primary and superior jurisdiction to determine the effect of its own decree of discharge, and it may exercise, or refuse tó exercise, that jurisdiction according to the exigencies of the ease. This we think was decided by the Circuit Court of Appeals for the Fourth Circuit in Seaboard Small Loan Corp. v. Ottinger, 50 F.(2d) 856, 859', 77 A. L. R. 956, where it was said: “In view of this purpose of the act and of the express provision that the bankrupt shall be released from all provable debts, it would be indeed a strange situation if tbe court vested with jurisdiction to enforce the act were without power to stay the hand of a creditor whose debt has been discharged by bankruptcy, but who nevertheless persists in harassing the bankrupt with efforts to collect it.” See, also, Pell et al. v. McCabe et al. (C. C. A.) 256 P. 512, 515. We conclude that the trial court had jurisdiction to decide whether or not the discharge in bankruptcy relieved the bankrupt of the debt and consequently of the claimed lien on which the actions were brought against him in the state court. The rule applicable in the state of Oregon to a chattel mortgage upon crops to be grown in the future is stated as follows in U. S. Nat. Bank v. Wright, 131 Or. 518, 520, 283 P. 1, as follows: “It is well settled that a chattel mortgage on crops to be thereafter sown and raised on the land of the mortgagor constitutes no lien on the land and will attach only to such interest as the mortgagor has in the crops when they come into being. Jones on Chattel Mortgages (5th Ed.) § 143a; Bouton v. Haggart, 6 Dak. 32, 50 N. W. 197; McMaster v. Emerson et al., 109 Iowa, 284, 80 N. W. 389; Simmons v. Anderson, 44 Minn. 487, 47 N. W. 52; Collins v. Brown, 19 Idaho, 360, 114 P. 671; Snerly v. Stacey et al., 174 Ark. 978, 298 S. W. 213, 214. “As stated in the ease last cited: “ ‘Mortgages on crops to be grown in the future constitute no lien upon the land upon which they are to be produced, and the lien formerly did not attach to the crop until it came in esse. The lien then attaches only to such interest as the mortgagor may have in the crop at that time.’ ” See, also, Flanagan Bank v. Graham, 42 Or. 403, 71 P. 137, 790. Courts have held almost without exception that, where there is no lien upon property belonging to the debtor at the time of his discharge, he is discharged from the obligation and the creditor deprived of his right to enforce the same against property subsequently acquired-by the debtor which, upon principles of equity, would be subject to a lien as soon as acquired if there had been no discharge in bankruptcy. This rule has been most frequently applied in eases of assignments or agreements to create liens upon wages to be earned subsequently by the debtor. In states where these agreements had been sustained as agreements to create a lien or an equitable interest in the wages when earned, it has been held that an adjudication in bankruptcy and discharge precluded the creditor from proceeding against wages subsequently earned which would otherwise be subject to the equitable lien or assignment. The principle upon which these decisions are rendered is that there can be no lien upon something which does not exist at the time of the adjudication. Consequently, there is no lien preserved by the Bankruptcy Act to the creditor in ease of discharge. One of the leading cases on this subject is In re West, 128 F. 295, 206, decided by Judge Bellinger in the District Court of the United States for the District of Oregon. We quote therefrom as follows: “The theory of a lien upon the earnings of future labor is not that it attaches to such earnings from the moment 'of contract of pledge or assignment, but from the moment of their existence. It is needless to say that there can be no lien upon what does not exist. A pledge or assignment of future wages under an existing employment is said to create an equitable interest in such wages. Stott v. Franey, 20 Or. 410, 26 P. 271, 23 Am. St. Rep. 132. This is true of wages earned upon a general employment, as well as those earned upon a definite contract. In this ease the railroad company was under no obligation to employ the bankrupt, nor he to work for the company. If future earnings in such a ease can be said to have a potential existence, they are the subject of an agreement for a lien; but the lien, or the so-called equitable interest, does not attach until the wages come into existence, and until the lien does attach there is no lien. The discharge in bankruptcy operated to discharge these obligations as of the date of the adjudication, so that the obligations were discharged before the wages intended as security were in existence. The law does not continue an obligation in order that there may be a lien, but only does so because there is one. The effect of the discharge upon the prospective liens was the same as though the debts had been paid before the assigned wages were earned. The wages earned after the adjudication became the property of the bankrupt clear of the claims of all creditors. Collyer on Bankruptcy, 509.” To the same effect see In re Lineberry (D. C.) 183 F. 338; In re Fellows (D. C.) 43 F.(2d) 122; In re Potts (D. C.) 54 F.(2d) 144. The same rule was recently laid down by the Circuit Court of Appeals of the Fourth Circuit, speaking through Judge Parker in Seaboard Small Loan Corp. v. Ottinger, 50 F.(2d) 856, 77 A. L. R. 956; Public Finance Co. v. Rowe, 123 Ohio St. 206,174 N. E. 738, 74 A. L. R. 900. By a parity of reasoning, where the state law creates no lien upon a future crop subject to a chattel mortgage until the crop comes into existence, the discharge of the bankrupt would destroy the remedy of the mortgagee and prevent an enforcement of the mortgage upon the crop when it comes into existence. A somewhat similar situation arose in North Dakota. In Union Nat. Bk. of Minot v. Lenton, 54 N. D. 262, 209 N. W. 350, the Supreme Court of North Dakota held that the discharge in bankruptcy did not prevent the subsequent foreclosure of chattel mortgage upon a crop which was not planted until after the adjudication in bankruptcy. But this decision was expressly based upon the statutory law of North Dakota which gave a lien in praasenti in the next annual crop. These decisions have no application to the ease at bar because based upon a statute peculiar to North Dakota at variance with the statutory law and the decisions of Oregon with reference to the nature and effect of the chattel mortgage upon crops to be grown in the future. Order affirmed. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:
songer_appel1_8_3	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. Lewis J. RUSKIN, Collateral Trustee, v. Charles H. GRIFFITHS, Trustee in Reorganization. No. 219, Docket 25317. United States Court of Appeals Second Circuit. Argued March 11, 1959. Decided Aug. 26, 1959. Washington, Circuit Judge, dissented in part. Paul, Weiss, Rifkind, Wharton & Garrison, New York City, Ruskin & Rosen-baum, Chicago, 111. (Simon H. Rifkind, New York City, Harry H. Ruskin, Chicago, 111., John E. Massengale, New York City, Irving Younger, Forest Hills, N. Y., of counsel), for appellant, Lewis J. Ruskin. Frederick P. Close, White Plains, N. Y. (Martin Drazen, White Plains, N. Y., of counsel), for Trustee in Reorganization, appellee. Louis J. Weinshenker, New York City (Edward A. Gorenstein, Walter Goodman, Chicago, 111., of counsel), for Richard Goodman, stockholder. Richard Goodman, pro se. Thomas G. Meeker, General Counsel, David Ferber, Asst. General Counsel, Pace Reich, Washington, D. C., Melvin Katz, Attorneys, SEC, Chicago, III., Richard V. Bandler, Special Counsel; Kiva Berke, New York City, Attorney, for Securities and Exchange Commission. Before WASHINGTON, WATERMAN, and MOORE, Circuit Judges. WATERMAN, Circuit Judge. On May 19, 1954 Lewis J. Ruskin, his wife, and the Rexall Drug Company sold all the stock of a retail drug store chain known as Ford Hopkins Company to General Stores Corporation. The purchase price was $2,800,000, of which $735,000 was to be paid in cash and the balance by notes to Ruskin and Rexall payable in installments until 1964. As security for these notes all the stock of Ford Hopkins and all the stock of Stineway Drug Company, another drug store chain owned by General Stores, was transferred to Ruskin as trustee for himself and for Rexall under a “Collateral Agreement” entered into simultaneously with the execution of the notes. Ruskin, as trustee under this agreement, had the right to elect a majority, or, after default, all the members of the Boards of Directors of these corporations. The notes were to accrue interest on principal at the rate of 4% per annum, but the collateral agreement provided that in case of an “event of default” as defined in that agreement the then total unpaid amount could be declared due and payable forthwith, and interest would then accrue upon overdue payments at the rate of 6% rather than at 4%. One “event of default” provided for in the agreement was as follows: “[I]f any proceedings before Control Date involving General or any subsidiary (other than Ford of Stineway) thereof or any successors thereto, and after Control Date involving General, Ford or Stineway or any subsidiary thereof or successors thereto, are commenced by or against such company under any bankruptcy, reorganization, arrangement, insolvency or readjustment of debt, dissolution or liquidation law or statute of the Federal Government or any state government, * * * ; then, in any such event, the holder or holders of any of the Notes then outstanding or the Trustee may, at their or his option, declare such Notes to be, and thereupon such Notes shall become, forthwith, due and payable * * * ”. The agreement also provided that the trustee was to be entitled to “reasonable compensation” for all the services he might render in the execution of the trusts and, in connection therewith, for his attorneys and counsel. This compensation was to constitute a prior lien on the trust estate and on all funds in the hands of the trustee. In October 1954 the debtor, General Stores, filed a petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq. However, instead of accelerating the debt because' of this petition, Ruskin entered into a standby agreement with debtor, dated November 1, 1954, wherein he agreed that unless certain specified conditions occurred he would not foreclose prior to July 18, 1955. On March 7, 1955, the United States District Court for the Southern District of New York granted similar motions by a shareholder of debt- or and by the Securities and Exchange' Commission to dismiss debtor’s petition unless it was amended so as to comply with the requirements of Chapter X of the Bankruptcy Act. In re General Stores Corporation, D.C.S.D.N.Y.1955, 129 F.Supp. 801. One month later we affirmed that decision, General Stores-Corporation v. Shlensky, 2 Cir., 1955, 222 F.2d 234. On August 17,1955, Lewis J. Ruskin as trustee under the collateral agreement, Lewis J. Ruskin individually, and Rexall Drug Company notified the debtor that they elected to declare the notes “forthwith due and payable because of an event of default occurring and existing under said collateral agreement by reason of the proceedings involving General Stores Corporation under Chapter XI of the Bankruptcy Act * * * commenced by General Stores Corporation and pending to this date in the United States District Court for the Southern District of New York.” The Supreme Court of the United States affirmed our decision in General Stores Corporation v. Shlensky on March 26, 1956, 350 U.S. 462, 76 S.Ct. 516, 100 L.Ed. 726, and about one month later the debtor filed an amended petition asking for reorganization under Chapter X of the Bankruptcy Act. The district court approved the amended petition on May 1, 1956 and appointed a reorganization trustee. This appeal stems from a petition filed by Ruskin, as trustee under the collateral agreement, seeking a determination of the amount of his claim on the unpaid notes, principal and interest, and of the amount of his lien for his own and his attorneys’ compensation. Ruskin claimed unpaid accrued interest at 4% to August 17, 1955, the date of the acceleration, and 6% thereafter. As compensation for his services as trustee Ruskin sought, at the rate of $35,000 per annum, $112,715.-13 for the period October 18, 1954 to January 7, 1958. He also sought $180,-000 as compensation for his attorneys. The court below decided that the post-default interest rate should remain at 4% rather than be increased to 6%; awarded Ruskin $24,215 as total compensation for his own services as collateral trustee, and granted attorneys’ fees in the amount of $60,000. In re General Stores Corporation, D.C.S.D.N.Y.1958, 164 F.Supp. 130. The parties seem to agree that the debtor is solvent. From these several determinations Ruskin appeals. The reorganization trustee, a stockholder of the debtor, and the Securities and Exchange Commission .are all in opposition. The Claim for Increased Interest Although the contract between the parties explicitly provided that interest was to be at 6% rather than 4% .after acceleration, the district court refused to allow the additional 2% interest. Relying upon Vanston Bondholders Protective Committee v. Green, 1946, 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162, rehearing denied 1947, 329 U.S. 833, 67 S.Ct. 497, 498, 91 L.Ed. 706, it held that Ruskin was not entitled to the benefit of his variable interest contract. We disagree with that holding. In Vanston the Supreme Court disallowed an indenture trustee’s claim against an insolvent debtor for interest on interest payments provided for in the trust indenture. The interest on interest accrued because the district court, pursuant to its administration of an equity receivership, had ordered both the debtor and the receiver not to pay simple interest coupons that fell due under the indenture after the court assumed jurisdiction. Even if we agreed with the court below that a Supreme Court precedent dealing with an obligation for interest on interest falling due because of an equity court’s stay order is equally applicable to a claim based upon a contractual provision for additional simple interest arising because the debtor sought the intervention of the bankruptcy laws, a question we need not now decide, we would still have to distinguish Vanston on what we find was a basic ground of that decision. In Van-ston the debtor was insolvent, and in our case it appears the debtor is solvent. In Empire Trust Co. v. Equitable Office Bldg. Corp., 2 Cir., 1948, 167 F.2d 346, we avoided a resolution of the effect of Vanston upon parties to a reorganization proceeding involving a solvent corporation, but the issue is squarely before us now, and we hold that the Supreme Court did not intend that the principle enunciated by it in Vanston, in a contest between creditors, should be applied to a contest between a debtor’s creditor and its stockholders. The Supreme Court held in Vanston that since the district court had taken over the debtor’s assets for the purpose of preserving and protecting them “pending a ratable distribution among all the creditors according to their interests as of the date the receivership began,” [329 U.S. 156, 67 S.Ct. 242] it would have been contrary to that purpose and inequitable to the junior creditors to have junior creditors suffer and the mortgage bondholders enriched because of a stay order required to further the receivership aim. This result naturally followed from an examination of the usual rules that deal with simple interest claims in bankruptcy and in reorganization proceedings, In re Wisconsin Cent. Ry. Co., D.C.D.Minn.1950, 93 F.Supp. 579, 582, affirmed United States Trust Co. of New York v. Zelle, 8 Cir., 1951, 191 F.2d 822, certiorari denied 1952, 342 U.S. 944, 72 S.Ct. 558, 96 L.Ed. 703. Thus, with respect to simple interest the Supreme Court said: “The general rule in bankruptcy and in equity receivership has been that interest on the debtors’ obligations ceases to accrue at the beginning of proceedings. Exaction of interest, where the power of a debtor to pay even his contractual obligations is suspended by law, has been prohibited because it was considered in the nature of a penalty imposed because of delay in prompt payment —a delay necessitated by law if the courts are properly to preserve and protect the estate for the benefit of all interests involved * * * Courts have felt that it would be inequitable for anyone to gain an advantage or suffer a loss because of such delay.” 329 U.S. at pages 163, 164, 67 S.Ct. at page 240. However, the Court carefully noted that this rule with respect to simple interest did not apply where the contest was between a creditor and stockholder of the debtor: “But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor.” 329 U.S. at page 164, 67 S.Ct. at page 241. Since the result the Court reached stemmed from the equitable principles developed with respect to creditors’ claims for simple interest in bankruptcy and equity receivership proceedings, and since it explicitly noted that these principles favored the debtor’s creditors over its stockholders, the Court could hardly have meant that the rule it was declaring was to be applied in the case of a solvent debtor. The district court decided that a result opposite to the one we reach here is dictated by that language in the Vanston opinion which states: “It is manifest that the touchstone of each decision on allowance of interest in bankruptcy, receivership and reorganization has been a balance of equities between creditor and creditor or between creditors and the debtor.” 329 U.S. at page 165, 67 S.Ct. at page 241. It seems to us, however, that when this language is read in context it does not support the decision of the district court. It follows after a discussion of two differing situations, “To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors * * * But where an estate was ample to pay all creditors and to pay interest even after the petition was filed, equitable considerations were invoked to permit payment of this additional interest to the secured creditor rather than to the debtor” 329 U.S. at page 164, 67 S.Ct. at page 240. and refers only to that discussion. See In re Realty Associates Securities Corporation, 2 Cir., 1947, 163 F.2d 387, 392 (dissenting opinion of Clark, J.), certiorari denied 1947, 332 U.S. 836, 68 S.Ct. 218, 219, 92 L.Ed. 409. Of the many cases cited to us only two seem worthy of attention. In re Schafer’s Bakeries, D.C.E.D.Mich.1957, 155 F.Supp. 902, relied upon by the district court, might be persuasive authority for the decision below if it were clear that that case involved a solvent debtor. However, there is nothing in the opinion to indicate that it did, and, since the plaintiff’s claim for interest on interest was successfully contested by an “Unsecured Creditors’ Committee,” it would seem that the debtor was actually an insolvent one. Certainly the court never pointed out whether the debtor there was solvent or insolvent, or discussed this distinction. On the other hand, in In re International Hydro-Electric System, D.C.D.Mass.1951, 101 F. Supp. 222, 224, the Massachusetts district court carefully considered this very problem when it held: “[I]t is important that IHES is not at the present time insolvent. It has assets more than sufficient to meet all claims of its creditors. No benefit will be given to the debenture holders at the expense of any other class of creditors. The burden of this payment will fall entirely on the interest of the stockholders. They cannot complain that they are treated inequitably when their interest is cut down by the payment of a sum to which the debenture holders are clearly entitled by the express provisions of the trust indenture. The situation here differs from that in Vanston Bondholders Protective Committee v. Green * * * where the payment of interest on deferred interest payments was not allowed even though called for by the trust indenture, because the payment would have reduced the share of subordinate creditors in the reorganization of an insolvent corporation.” A variable interest provision in event of a stated default such as we have here is not a penalty, nor should it be considered unconscionable. Compare Union Estates Co. v. Adlon Const. Co., 1917, 221 N.Y. 183, 116 N.E. 984, 12 A.L.R. 363, with Newburger-Morris Co. v. Talcott, 1916, 219 N.Y. 505, 510, 114 N.E. 846, 3 A.L.R. 287. It can be beneficial to a debtor in that it may enable him to obtain money at a lower rate of interest than he could otherwise obtain it, for if a creditor had to anticipate a possible loss in the value of the loan due to his debtor’s bankruptcy or reorganization, he would need to exact a higher uniform interest rate for the full life of the loan. The debtor has the benefit of the lower rate until the crucial event occurs; he need not pay a higher rate throughout the life of the loan. Undoubtedly the debtor filed its petition under Chapter XI because it believed it beneficial to itself to do so, and in a case such as this, where there is no showing that the creditor entitled to the increased interest caused any unjust delay in the proceedings, it seems to us the opposite of equity to allow the debtor to escape the expressly-bargained-for result of its act. RusJcin’s Claim for Compensation Under the Collateral Agreement Article VIII, Section 1(2) of the collateral agreement provided as follows: “Section 1. The Trustee accepts the Trust of this Collateral Agreement upon the following terms and conditions to which General and the holder and holders of the Notes secured hereby agree: ***«•«• “(2) The Trustee shall be entitled to reasonable compensation for all services rendered in the execution of the trusts hereby created, to be paid, for services prior to the existence of one or more of the events of default mentioned in Section 1 of Article VI hereof by the holders of the Notes ratably, and for services after the existence of one or more of the events of default mentioned in Section 1 of Article VI hereof, by General; and for such payment, the Trustee shall have a lien on the Trust Estate and all funds in the hands of the Trustee, in priority to the rights and claims of the holder or holders of said Notes.” Pursuant to this section Ruskin claims $112,715.13 from debtor for his services from October 18, 1954 computed to January 7, 1958, at $35,000 per annum. These services allegedly consisted of directing the policy of closing small volume or marginal stores and opening large volume self-service stores; directing the acquisition of the Wright and Lawrence chain of drug stores; directing the development of “system stores” and the placing of higher profit margin items in the rack jobbing operations in the grocery chains when the profits of the so-called “Huron division” servicing these grocery chains began to diminish because of direct drug purchases by these chains; directing the weekly meetings of “operating committees” wherein Ruskin counseled and guided the company executives; making personal visits to the offices of the subsidiaries in Chicago ten or eleven times a year for four days at a time; while at home in Arizona, keeping in constant contact with the executives and studying reports sent to him; and generally keeping in touch with industry trends and directing the companies’ policies. Looking at the question of compensation in terms of what it found were the requirements of Article VIII, Section 1(2) of the collateral agreement — i. e., that the services be rendered in the “execution of the trusts” and the compensation be “reasonable” — the district court allowed Ruskin a total of $24,215. In an order entered July 1, 1958, upon what was in effect a petition for a rehearing, the district court reaffirmed this allowance. The fixing of allowances is not only the most thankless task in all of the problems of judicial reorganization, it is also the most delicate. Scribner & Miller v. Conway, 2 Cir., 1956, 238 F.2d 905; Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431. Consequently an appellate court would be less than wise if it did not rely heavily for guidance in such matters upon the SEC which functions as a responsible and disinterested public agency, Scribner & Miller v. Conway, supra; Finn v. Childs Co., supra, and the district court whose intimate knowledge of the whole reorganization gives it a peculiar advantage, Johnson v. Carolina Scenic Stages, 4 Cir., 1957, 242 F.2d 263; Finn v. Childs Co., supra; Milbank, Tweed & Hope v. McCue, 4 Cir., 1940, 111 F.2d 100. And see Surface Transit Inc. v. Saxe, Bacon & O’Shea, 2 Cir., 266 F.2d 862. In this case the rate of compensation recommended by the SEC would have entitled Ruskin to a sum somewhat less than $20,000. Since this is approximately $5,000 less than the district court awarded him it would require a strong showing by Ruskin in order for us to award him an additional sum, or to remand this case to the district court for reconsideration. While the district court pointed out that [164 F.Supp. 142] “the services of the collateral trustee to some extent contributed to the stabilization in management of the two subsidiaries concerned,” and that “in part the success of these corporations during the period in question came from attention which the collateral trustee’s control effected,” it found that there was no convincing evidence to show that all or even a large portion of Ruskin’s activities were necessary to properly execute the purpose of his trust — i. e., the purpose of seeing that the note holders were properly secured. Also the court found that there was no substantial evidence to indicate that an executive capable of conducting the necessary supervision of the two subsidiaries was not in their employ, or could not have been hired by them, and therefore services rendered by Ruskin for which he sought compensation as a trustee were unnecessary. After an examination of the record we are not convinced that the district court’s findings and award are clearly erroneous. Claim for Compensation for Attorneys' Fees Ruskin’s last contention on this appeal is that the district court did not allow him sufficient compensation for attorneys’ fees. His claim for $180,000 for the period between October 15, 1954 and December 13, 1957 was predicated under Section 1(3) of Article VIII of the collateral agreement. That section provides : “The Trustee may employ agents, attorneys and counsel in the execution of said trusts, who may also be the attorneys and counsel of the holder or holders of said Notes, and of Ford and Stineway, or their successors, or any one or more of them, and the reasonable compensation of the Trustee’s attorneys and counsel and of any other person as the Trustee may employ in the administration and management of the trusts hereunder, and all other reasonable expenses necessarily incurred or actually disbursed hereunder, General agrees to pay to the Trustee on demand; and for such payment, the Trustee shall have a lien on the Trust Estate, and on all funds in the hands of the Trustee, in priority to the rights and claims of the holder or holders of said Notes.” $80,000 of the claim was for the Chicago law firm of Ruskin & Rosenbaum and $100,000 was for the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. After careful consideration of the items of Ruskin’s claim and upon the advice of the SEC, the district court allowed Ruskin & Rosenbaum the sum of $5,000 for the period between October 15, 1954 and April 30, 1956, and made a joint award of $55,000 for the combined services of Ruskin & Rosenbaum and Paul, Weiss, Rifkind, Wharton & Garrison for the period from on or about April 30, 1956 to December 15, 1957. Ruskin contends that the district court committed error in making these awards because it applied a wrong standard in evaluating counsel’s services. He argues that the court rewarded these two firms only for services that brought forth actual benefits accruing to the debt- or’s estate rather than for the services which, pursuant to contract, they rendered to him as collateral trustee. We find nothing in the district court’s opinion which would indicate that it applied the standard which Ruskin contends it did apply. Rather, all the indications we find are to the contrary. Thus: “There is inadequate proof to indicate that the extensive time involved in preparing lengthy briefs was necessary for the protection of the collateral trustee and his trust * * ” 164 F.Supp. at page 145. “Here, we are concerned with a trust in which the fundamental premise on which the allowance is made must be based upon what is fair and reasonable under the circumstances of the particular case. The necessity of the services depends in the first instance upon whether or not the proceedings initiated were reasonably essential to the protection of the trust. The amount allowed should bear a reasonable relationship to the demands of the situation.” 164 F.Supp. at page 146. The district court fully realized that it was making an award under a contract between the debtor and Ruskin. It was also aware, and rightly so, that the award would be paid from a reorganization debtor’s assets. Newman & Bisco v. Realty Associates Securities Corp., 2 Cir., 1949, 173 F.2d 609; Butzel v. Webster Apartments Co., 6 Cir., 1940, 112 F.2d 362. Consequently, in order to avoid that “vicarious generosity” which the courts have so often deplored, Finn v. Childs Co., 2 Cir., 1950, 181 F.2d 431, it considered in detail the services rendered by the two firms. In making the allowances it found and properly took into account that there was some duplication of services rendered by the New York and Chicago firms, Finn v. Childs Co., supra; Newman & Bisco v. Realty Associates Securities Corp., supra; that certain of the services rendered related to matters that did not need legal action or require advice of counsel; that the issues dealt with by counsel were not complex, Newman & Bisco v. Realty Associates Securities Corp., supra; In re McGrath Mfg. Co., D.C.D.Neb.1951, 95 F.Supp. 825; that approximately half of the recorded time spent by the New York firm was contributed by a junior associate, Finn v. Childs Co., supra; that during the period for which compensation was being sought for them by the collateral trustee, the Chicago firm was receiving an annual retainer of $15,000 from Ford Hopkins. Ruskin does not demonstrate that these findings of the district court were clearly erroneous. Nor does he show that the court’s award made on the basis of those findings, an award in accord with the recommendation of the SEC, was an improper one. With respect to SEC recommendations in such matters, we said in Finn v. Childs Co., supra, 181 F.2d at page 438: “[T]he figures presented by the S.E.C. are not ‘mere casual conjectures,’ but are ‘recommendations based on closer study than a district judge could ordinarily give to such matters.’ Frank, supra, 18 N.Y.U.L. Q.Rev. 317, 1941. We agree with District Judge Kirkpatrick’s apt statement ‘that the Commission is about the only wholly disinterested party in the proceeding and that, while it may not be entirely familiar with “the problems of making both ends meet in a law office” referred to by counsel, its experience has made it thoroughly familiar with the general attitude of the Courts and the amounts of allowances made in scores of comparable proceedings.’ In re Philadelphia & Reading Coal & Iron Co., D.C.E.D.Pa., 61 F.Supp. 120, 124.” We cannot say that here the broad discretion with which the district judge, in the first instance, must of necessity be empowered in this type of case, see Johnson v. Carolina Scenic Stages, 4 Cir., 1957, 242 F.2d 263, has been abused. Accordingly, we affirm that portion of the district court’s order disposing of the claims of the collateral trustee for compensation for himself and for allowance with which to compensate his attorneys; we reverse the portion of that order that denies interest on the unpaid installment notes at a rate in excess of 4% per an-num from August 17, 1955 forward; and the cause is remanded for further proceedings not inconsistent with this opinion. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
songer_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lowell T. WEAVER, Defendant-Appellant. No. 71-2042. United States Court of Appeals, Sixth Circuit. May 3, 1972. C. Michael Kimber (Court Appointed), Detroit, Mich., for appellant. William C. Ibershof, Asst. U. S. Atty., Detroit Mich., Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief, for appel-lee. Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge. PER CURIAM. Appellant appeals from a jury verdict of guilty and judgments of sentence entered in the United States District Court for the Eastern District of Michigan, Southern Division, on two counts of Dyer Act violations, 18 U.S.C. § 2312 and § 2(b) (1970). The principal appellate issue pertains to appellant’s claim that admission of evidence pertaining to not only the two cars mentioned in the two counts of the indictment, but also a third stolen car, represented reversible error. In the context of a very similar set of facts, where the identical issue was raised and argued with vigor, this court has recently affirmed the admissibility of such evidence when it tended to show a pattern of conduct. United States v. Clark, 437 F.2d 942 (6th Cir. 1971). Finding no reversible error the judgment of the District Court is affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_geniss	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Milton ABRAMSON, Appellant, v. The COUNCIL BLUFFS COMMUNITY SCHOOL DISTRICT et al., Appellees. Milton ABRAMSON, Appellant, v. COUNCIL BLUFFS COMMUNITY SCHOOL DISTRICT, Appellee. Milton ABRAMSON, Appellee, v. The COUNCIL BLUFFS COMMUNITY SCHOOL DISTRICT et al., Appellants. Nos. 86-1125, 86-1168. United States Court of Appeals, Eighth Circuit. Submitted Oct. 14, 1986. Decided Jan. 26, 1987. David T. Siegel, Omaha, Neb., for appellant. Becky S. Knutson, Des Moines, Iowa, for appellees. Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and NICHOL, Senior District Judge. The Honorable Fred J. Nichol, United States Senior District Judge, District of South Dakota, sitting by designation. HENLEY, Senior Circuit Judge Milton Abramson appeals from the district court’s dismissal of his claims filed under both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983. The district court found that a prior administrative adjudication that appellant was dismissed from his teaching position for cause barred him from relitigating that issue under the doctrine of collateral estoppel/issue preclusion. We affirm in part, reverse in part, and remand. Appellant was hired by the Council Bluffs Community School District as a teacher in November of 1978. On February 2, 1983 appellant filed Charges of Discrimination with the Iowa Civil Rights Commission, the City of Council Bluffs Human Relations Department, and the Equal Employment Opportunity Commission against appellees Council Bluffs Education Association and the School District. Area Education Agency 13 was added as a respondent in the Charges of Discrimination on April 13, 1983. Appellant claimed discrimination on the basis of his religion and retaliatory harassment stemming from a 1981 lawsuit brought by the appellant against the School District which successfully challenged the ordering of involuntary prayer in public schools. Appellant received a letter on March 9, 1983 notifying him that the Superintendent of Schools would recommend to the Board of Education that he be terminated effective June 3, 1983. On April 5, 1983 appellant amended his charge of discrimination to include an allegation that his employment was being terminated on the basis of his religion. Appellant invoked administrative review procedures, Iowa Code §§ 279.15 — 270.18, and the Board of Directors of the School District conducted a hearing on May 6, 7, 11 and 18. Appellant was represented by counsel at the hearing and had the opportunity to cross-examine witnesses against him and to produce witnesses on his behalf. The Board of Directors voted unanimously to terminate appellant on June 14, 1983. Appellant appealed the Board’s determination to an adjudicator, Iowa Code § 279.17, who upheld the Board’s decision. Appellant did not seek further review to the state district courts available under the statutory scheme. Iowa Code § 279.18. Appellant obtained a Letter of Right to Sue from the EEOC on November 7, 1983 and filed his first complaints in the United States District Court. The cases were consolidated by the district court. On September 13, 1984 appellant filed an amended complaint which added numerous individual defendants who had not been included in his Charge of Discrimination filed with the EEOC. In April of 1985 all of the defendants filed motions to dismiss. Those motions were granted because the district court concluded that under the doctrine of issue preclusion the administrative determination that appellant’s dismissal was for just cause barred the relitigation of that issue in federal court. See Gear v. City of Des Moines, 514 F.Supp. 1218, 1222 (S.D.Iowa 1981). Subsequent to the district court’s dismissal, the United States Supreme Court has resolved the question of the preclusionary effect of an unreviewed administrative proceeding in University of Tennessee v. Elliott, — U.S. —, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). Issues in Title VII claims are not subject to preclusion by unreviewed state administrative proceedings. Elliott, 106 S.Ct. at 3225. Appellant did not seek further review in the state courts. Thus, under Elliott he is entitled to trial of his Title VII claim. Unreviewed administrative proceedings may, however, have preclusive effect on claims based on the Reconstruction civil rights statutes including § 1983. With regard to these claims the Supreme Court held that when a state agency “acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,” ... federal courts must give the agency’s factfinding the same preclusive. effect to which it would be entitled in the State’s courts. Elliott, 106 S.Ct. at 3227 (citation omitted). Our decision on the preclusive effect of the administrative factfinding is dictated by Yancy v. McDevitt, 802 F.2d 1025 (8th Cir.1986). In Yancy another panel of this court determined that the Iowa courts would give the school board’s decision preclusive effect. Id. at 1030. Accordingly, that portion of the district court’s order dismissing Abramson’s § 1983 action is affirmed. In partial support of the district court’s dismissal, the appellees also raise two jurisdictional grounds. The district court did not address the jurisdictional arguments in its order. First, the various organization appellees contend that the court lacks jurisdiction in a Title VII action over its individual members named in appellant’s amended complaint because the individuals were not included in the Charge of Discrimination filed with the EEOC. In certain instances it is unnecessary to name each proposed defendant as a respondent in the EEOC charge. Glus v. G.C. Murphy Co., 629 F.2d 248, 251-52 (3d Cir.1980), vacated and remanded on other grounds, Retail, Wholesale and Department Store Union v. G.C. Murphy Co., 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981). The parties dispute the outcome of the four-part Glus test in determining jurisdiction over the unnamed parties. This court declines to decide the issue on the present record. Whether the Glus exception is satisfied is best left for the district court’s determination in the first instance. The second jurisdictional challenge is made by the Council Bluffs Education Association. The Association contends that it is not a labor organization as defined in 42 U.S.C. § 2000e(d). The Association’s sole contention in this regard is that it is not “engaged in an industry affecting commerce.” Id. Here again, in the absence of some expression from the district court, we decline to decide this mixed question of law and fact on the record now before this court. The judgment of the district court is affirmed in part, reversed in part, and the matter remanded for further proceedings consistent with this opinion. . Non-preclusion of Title VII claims by unreviewed state agency decisions was the rule in the Eighth Circuit before Elliott. See Heath v. John Morrell & Co., 768 F.2d 245, 248 (8th Cir.1985). A different result may attach when judicial review of the administrative decision has been sought in state court. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 485, 102 S.Ct. 1883, 1899, 72 L.Ed.2d 262 (1982). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_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. LEE et al. v. WEISMAN, personally and as next friend of WEISMAN No. 90-1014. Argued November 6, 1991 Decided June 24, 1992 Kennedy, J., delivered the opinion of the Court, in which Blackmun, Stevens, O’Connor, and Soutek, JJ., joined. Blackmun, J., post, p. 699, and Souter, J., post, p. 609, filed concurring opinions, in which Stevens and O’Connor, JJ., joined. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and White and Thomas, JJ., joined, post, p. 631. Charles J. Cooper argued the cause for petitioners. With him on the briefs were Michael A. Garvin, Peter J. Fer-rara, Robert J. Cynkar, Joseph A. Botella, and Jay Alan Sekulow. Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Deputy Assistant Attorney General McGinnis, and Richard H. Seamon. Sandra A. Blanding argued the cause for respondent. With her on the brief were Steven R. Shapiro and John A. Powell. Briefs of amici curiae urging reversal were filed for the Board of Education of Alpine School District by Brinton R. Burbidge and Merrill F Nelson; for the Christian Legal Society et al. by Edward McGlynn Gaff-ney, Michael J. Woodruff, Samuel E. Ericsson, and Forest D. Montgomery; for the Clarendon Foundation by Kemp R. Harshman and Ronald D. Maines; for Concerned Women for America et al. by James Matthew Henderson, Sr., Jordan Lorence, Mark N. Troobnick, and Thomas Patrick Monaghan; for Focus on the Family et al. by Stephen H. Galebach and Laura D. Milkman; for the Liberty Counsel by Mathew D. Staver; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Legal Foundation by Robert K. Skol-rood and Brian M. McCormick; for the Rutherford Institute et al. by John W. Whitehead, Alexis I. Crow, A. Eric Johnston, Stephen E. Hurst, Joseph Secóla, Thomas S. Neuberger, J Brian Heller, Amy Dougherty, David Melton, Thomas W Stratum, Robert R. Melnick, William Bonner, Larry Crain, W. Charles Bundren, and James Knicely; for Specialty Research Associates, Inc., et al. by Jordan Lorence; for the Southern Baptist Convention Christian Life Commission by Michael K. Whitehead and James M. Smart, Jr.; and for the United States Catholic Conference by Mark E. Chopko and Phillip H. Harris. Briefs of amici curiae urging affirmance were filed for Americans for Religious Liberty by Ronald A Lindsay; and for the American Jewish Congress et al. by Douglas Laycock. Briefs of amici curiae were filed for the State of Delaware by Charles M. Oberly III, Attorney General of Delaware, Michael F. Foster, Solicitor General, David S. Swayze, and David B. Ripsom; for the Council on Religious Freedom et al. by Lee Boothby, Robert W. Nixon, Walter E. Carson, and Holland Truman; for the Institute in Basic Life Principles by Joe Reynolds; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell and T. Jeremy Gunn; and for the National School Boards Association by Gwendolyn H. Gregory, August W. Stein-hilber, and Thomas A Shannon. Justice Kennedy delivered the opinion of the Court. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts. I A Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony-in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted. It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[pjrayer of any kind may be inappropriate on some civic occasions.” App. 20-21., The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsee-tarian. Agreed Statement of Facts ¶ 17, id., at 13. Rabbi Gutterman’s prayers were as follows: “INVOCATION “God of the Free, Hope of the Brave: “For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it. "Por the liberty of America, we thank You. May these new graduates grow up to guard it. "For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. “For the destiny of America we thank You. May the graduates of Nathan Bishop. Middle School so live that they might help to share it. “May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. AMEN” “BENEDICTION “0 God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. “Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. “The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. “We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion. AMEN” Id., at 22-23. The record in this case is sparse in many respects, and we are unfamiliar with any fixed custom or practice at middle school graduations, referred to by the school district as “promotional exercises.” We are not so constrained with reference to high schools, however. High school graduations are such an integral part of American cultural life that we can with confidence describe their customary features, confirmed by aspects of the record and by the parties’ representations at oral argument. In the Providence school system, most high school graduation ceremonies are conducted away from the school, while most middle school ceremonies are held on school premises. Classical High School, which Deborah now attends, has conducted its graduation ceremonies on school premises. Agreed Statement of Facts ¶ 37, id., at 17. The parties stipulate that attendance at graduation ceremonies is voluntary. Agreed Statement of Facts ¶ 41, id., at 18. The graduating students enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families. We assume the clergy’s participation in any high school graduation exercise would be about what it was at Deborah’s middle school ceremony. There the students stood for the Pledge of Allegiance and remained standing during the rabbi’s prayers. Tr. of Oral Arg. 38. Even on the assumption that there was a respectful moment of silence both before and after the prayers, the rabbi’s two presentations must not have extended much beyond a minute each, if that. We do not know whether he remained on stage during the whole ceremony, or whether the students received individual diplomas on stage, or if he helped to congratulate them. The school board (and the United States, which supports it as amicus curiae) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman’s case. B Deborah’s graduation was held on the premises of Nathan Bishop Middle School on June 29, 1989. Four days before the ceremony, Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary restraining order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. We find it unnecessary to address Daniel Weisman’s taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation. Agreed Statement of Facts ¶ 38, App. 17. The case was submitted on stipulated facts. The District Court held that petitioners' practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. 728 F. Supp. 68 (1990). The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion. Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 773 (1973). The District Court held that petitioners' actions violated the second part of the test, and so did not address either the first or the third. The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action “creates an identification of the state with a religion, or with religion in general,” 728 F. Supp., at 71, or when “the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.” Id., at 72. The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause. In so holding the court expressed the determination not to follow Stein v. Plainwell Community Schools, 822 F. 2d 1406 (1987), in which the Court of Appeals for the Sixth Circuit, relying on our decision in Marsh v. Chambers, 463 U. S. 783 (1983), held that benedictions and invocations at public school graduations are not always unconstitutional. In Marsh we upheld the constitutionality of the Nebraska State Legislature's practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. The District Court in this case disagreed with the Sixth Circuit's reasoning because it believed that Marsh was a narrow decision, “limited to the unique situation of legislative prayer,” and did not have any relevance to school prayer cases. 728 F. Supp., at 74. On appeal, the United States Court of Appeals for the First Circuit affirmed. The majority opinion by Judge Tor-ruella adopted the opinion of the District Court. 908 F. 2d 1090 (1990). Judge Bownes joined the majority, but wrote a separate concurring opinion in which he decided that the practices challenged here violated all three parts of the Lemon test. Judge Bownes went on to agree with the District Court that Marsh had no application to school prayer cases and that the Stein decision was flawed. He concluded by suggesting that under Establishment Clause rules no prayer, even one excluding any mention of the Deity, could be offered at a public school graduation ceremony. 908 F. 2d, at 1090-1097. Judge Campbell dissented, on the basis of Marsh and Stein. He reasoned that if the prayers delivered were nonsectarian, and if school officials ensured that persons representing a variety of beliefs and ethical systems were invited to present invocations and benedictions, there was no violation of the Establishment Clause. 908 F. 2d, at 1099. We granted certiorari, 499 U. S. 918 (1991), and now affirm. II These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573 (1989); Wallace v. Jaffree, 472 U. S. 38 (1985); Lynch v. Donnelly, 465 U. S. 668 (1984). For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and ami-cus the United States to reconsider our decision in Lemon v. Kurtzman, supra. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” Lynch, supra, at 678; see also County of Allegheny, supra, at 591, quoting Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). The State’s involvement in the school prayers challenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State’s attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, see infra, at 593-594, subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation. The State’s role did not end with the decision to include a prayer and with the choice of a clergyman. Principal Lee provided Rabbi Gutterman with a copy of the “Guidelines for Civic Occasions,” and advised him that his prayers should be nonseetarian. Through these means the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State’s displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American, people to recite as a part of a religious program carried on by government,” Engel v. Vitale, 370 U. S. 421, 425 (1962), and that is what the school officials attempted to do. Petitioners argue, and we find nothing in the case to refute it, that the directions for the content of the prayers were a good-faith attempt by the school to ensure that the sectarianism which is so often the flashpoint for religious animosity be removed from the graduation ceremony. The concern is understandable, as a prayer which uses ideas or images identified with a particular religion may foster a different sort of sectarian rivalry than an invocation or benediction in terms more neutral. The school’s explanation, however, does not resolve the dilemma caused by its participation. The question is not the good faith of the school in attempting to make the prayer acceptable to most persons, but the legitimacy of its undertaking that enterprise at all when the object is to produce a prayer to be used in a formal religious exercise which students, for all practical purposes, are obliged to attend. We are asked to recognize the existence of a practice of nonseetarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. There may be some support, as an empirical observation, to the statement of the Court of Appeals for the Sixth Circuit, picked up by Judge Campbell’s dissent in the Court of Appeals in this case, that there has emerged in this country a civic religion, one which is tolerated when sectarian exercises are not. Stein, 822 F. 2d, at 1409; 908 F. 2d 1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting) (case below); see also Note, Civil Religion and the Establishment Clause, 95 Yale L. J. 1237 (1986). If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself. The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: “[Ejxperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973). These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. Engel v. Vitale, supra, at 425. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And toler-anee presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief,, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution. The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. Meese v. Keene, 481 U. S. 465, 480-481 (1987); see also Keller v. State Bar of California, 496 U. S. 1, 10-11 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. Buckley v. Valeo, 424 U. S. 1, 92-93, and n. 127 (1976) (per curiam). The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed. The lessons of the First Amendment are as urgent in the modern world as in the 18th century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves. As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. See, e. g., School Dist of Abington v. Schempp, 374 U. S. 203, 307 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U. S. 578, 584 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 261-262 (1990) (Kennedy, J., concurring). Our decisions in Engel v. Vitale, 370 U. S. 421 (1962), and School Dist. of Abington, supra, recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S., at 661 (Kennedy, J., concurring in judgment in part and dissenting in part). What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district's supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. Brit-tain, Adolescent Choices and Parent-Peer Cross-Pressures, 28 Am. Sociological Rev. 385 (June 1963); Ciasen & Brown, The Multidimensionality of Peer Pressure in Adolescence, 14 J. of Youth and Adolescence 451 (Dec. 1985); Brown, Ciasen, & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986). To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use soeial pressure to enforce orthodoxy than it may use more direct means. The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objectors’ rights. That the intrusion was in the course of promulgating religion that sought to be civic or nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront. See supra, at 593. There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Agreed Statement of Facts ¶ 41, App. 18. Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands. The Government’s argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government’s position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, hereby electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. See supra, at 593-594 Just as in Engel v. Vitale, 370 U. S., at 430, and School Dist. of Abington v. Schempp, 374 U. S., at 224-225, where we found that provisions within the challenged legislation permitting a student to be voluntarily excused from attendance or participation in the daily prayers did not shield those practices from invalidation, the fact that attendance at the graduation ceremonies is voluntary in a legal sense does not save the religious exercise. Inherent differences between the public school system and a session of a state legislature distinguish this case from Marsh v. Chambers, 463 U. S. 783 (1983). The considerations we have raised in objection to the invocation and benediction are in many respects similar to the arguments we considered in Marsh. But there are also obvious differences. The atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the one school event most important for the student to attend. The influence and force of a formal exercise in a school graduation are far greater than the prayer exercise we condoned in Marsh. The Marsh majority in fact gave specific recognition to this distinction and placed particular reliance on it in upholding the prayers at issue there. 463 U. S., at 792. Today’s case is different. At a high school graduation, teachers and principals must and do retain a high degree of control over the precise contents of the program, the speeches, the timing, the movements, the dress, and the decorum of the students. Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986). In this atmosphere the state-imposed character of an invocation and benediction by clergy selected by the school combine to make the prayer a state-sanctioned religious exercise in which the student was left with no alternative but to submit. This is different from Marsh and suffices to make the religious exercise a First Amendment violation. Our Establishment Clause jurisprudence remains a delicate and fact-sensitive one, and we cannot accept the parallel relied upon by petitioners and the United States between the facts of Marsh and the ease now before us. Our decisions in Engel v. Vitale, supra, and School Dist. of Abington v. Schempp, supra, require us 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_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party EXPORTAL LTDA., Mario Fantuzzi, and Jesus Villasante, Petitioners, v. UNITED STATES of America and Clayton Yeutter, Secretary of Agriculture, Respondents. No. 89-1068. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 26, 1990. Decided April 13, 1990. Walter H. Lion, New York City, for petitioners. Raymond W. Fullerton, Asst. Gen. Counsel, Dept, of Agriculture, with whom James Michael Kelly, Associate Gen. Counsel, Margaret M. Breinholt, Deputy Asst. Gen. Counsel, and Ellen R. Hornstein, Dept, of Agriculture, Washington, D.C., were on the brief, for respondents. Before WALD, Chief Judge, and MIKVA and EDWARDS, Circuit Judges. Opinion for the Court filed by Circuit Judge EDWARDS. HARRY T. EDWARDS, Circuit Judge: In this case, petitioner, Exportal Ltda. (“Exportal”), a Chilean fruit producer, challenges a decision of the Secretary of Agriculture (“Secretary”) declining to waive a bond requirement in connection with a reparation proceeding sought to be initiated by petitioner. Department of Agriculture (“DOA”) regulations provide that the bond requirement “shall be waived” if a foreign complainant can show that its nation does not require a United States complainant to file a bond in a proceeding against a citizen of that nation. 7 C.F.R. § 47.6(b) (1989). Exportal’s request for a waiver of the bond requirement was denied because, according to the Secretary, such waivers remain discretionary even when a foreign complainant makes the requisite showing pursuant to agency regulations. We find this decision to be flatly inconsistent with the plain terms of DOA’s regulations. Accordingly, we reverse and remand for further proceedings. As an initial matter, we hold that the Secretary’s decision is a “final order” reviewable under the Administrative Orders Review Act, 28 U.S.C. § 2342(2) (1982). Second, we hold that the petitioner’s challenge must be upheld because the Secretary’s decision is contrary to the plain language of the agency’s own regulations. Finally, we remand for further proceedings to allow the Secretary to address whether Exportal has shown that Chilean law satisfies the reciprocity requirement imposed by section 47.6(b). I. Background The Perishable Agricultural Commodities Act, 7 U.S.C. §§ 499a-499s (1988) (“PACA”), establishes a remedial scheme to protect agricultural producers from fraudulent practices by brokers. See generally Harry Klein Produce v. Department of Agriculture, 831 F.2d 403, 405 (2d Cir.1987). Under PACA, a producer aggrieved by such a practice may initiate a reparation proceeding by filing a formal complaint with the Secretary. See 7 U.S.C. § 499f(a), (c); 7 C.F.R. § 47.6. If the Secretary finds for the producer, an order is entered in favor of the producer awarding compensation for its damages. See 7 U.S.C. § 499g(a). Either party may appeal the Secretary’s decision to federal district court, where the producer’s claim is tried de novo. See 7 U.S.C. § 499g(c). The prevailing party in a reparation proceeding under PACA can recover its costs and attorney fees. See 7 C.F.R. § 47.19(d) (1989). To secure these expenses, as well as any damages awardable on a counterclaim, a foreign producer may be obliged to furnish a bond equal to double the amount of its claim. See id. § 499f(e). However, pursuant to authority delegated to the Secretary by PACA, see id., DOA regulations state that the bond requirement is waived in the following circumstance: [T]he furnishing of a bond shall be waived if the complainant is a resident of a country which permits filing of a complaint by a resident of the United States against a citizen of that country without the furnishing of a bond. 7 C.F.R. § 47.6(b). Under both PACA and DOA regulations, a foreign complainant must either file a bond or obtain a waiver before the DOA can take “any formal action ... on [the producer’s] complaint,” 7 U.S.C. § 499f(e), including service of the complaint on the broker and docketing of the case for adjudication. See 7 C.F.R. §§ 47.6(b), (c), 47.10 (1989). The decision whether to grant a waiver request is made by the Secretary or a designated DOA staff member. In August 1988, Exportal filed a complaint with the Secretary alleging that its United States broker had unlawfully withheld $182,000 due Exportal. Advised of PACA’s foreign-producer bond requirement, Exportal petitioned the DOA for a waiver; in support of the petition, Exportal proffered an affidavit from a Chilean attorney attesting that Chile does not require United States citizens to furnish bonds before bringing civil actions against Chileans. In a one-page letter, the Chief of the PACA Branch of the DOA rejected Exportal’s request, stating: the wording of [PACA] gives the Secretary ... discretion over whether to waive the bond requirement, even when the complainant’s national court system allows claims by extranationals without supplying a bond. Appendix 3. As a basis for the exercise of the Secretary’s discretion in this case, the letter cited the need to secure a potential counterclaim by Exportal’s broker. See id. Rather than file a $364,000 bond, Expor-tal petitioned this court for review. Ex-portal maintains that under 7 C.F.R. § 47.6(b) the Secretary has no discretion to deny a waiver if the foreign producer shows that its nation’s legal system does not require United States citizens to furnish bonds. In addition to disputing this reading of the DOA’s regulations, the Secretary argues that we are without jurisdiction to entertain Exportal’s petition. II. Analysis A. Jurisdiction By its terms, the Administrative Orders Review Act plainly extends to a decision denying a waiver pursuant to 7 U.S.C. § 499f(e): the court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of— (2) all final orders of the Secretary of Agriculture made under chapters 9 and 20A of title 7, except orders issued under sections 210(e), 217a, and 499g(a) of title 7.... 28 U.S.C. § 2342 (emphasis added). The Secretary nonetheless contests jurisdiction on the ground that a decision to deny a waiver is not a “final order.” Alternatively, the Secretary maintains that Exportal should have directed its petition to the district court, because that is the court with jurisdiction over appeals from the Secretary’s reparation orders. See 7 U.S.C. § 499g(c). We disagree. We engage in a “pragmatic” inquiry to determine whether an agency decision is a “final order” for purposes of the Administrative Orders Review Act. See New York Shipping Ass’n v. FMC, 854 F.2d 1338, 1351 (D.C.Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 866, 102 L.Ed.2d 990 (1989). The relevant questions are, first, “whether the process of administrative decisionmak-ing has reached a stage where judicial review will not disrupt the orderly process of adjudication”; and, second, “whether rights or obligations have been determined or legal consequences will flow from the agency decision.” Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 210, 27 L.Ed.2d 203 (1970); accord New York Shipping Ass’n, 854 F.2d at 1351. There is no doubt that the process of administrative decisionmaking in this case has reached a stage where judicial review will not disrupt any adjudication under PACA. The Secretary contends that his waiver denial is not a final order because it is interlocutory in nature. However, this characterization ignores the special procedural mechanism by which the DOA decides a waiver request. Consistent with PACA, see 7 U.S.C. § 499f(e), DOA regulations provide that a foreign producer must obtain a waiver before the agency invokes any component of the adjudicatory procedures — from service of the complaint, to discovery, to a formal hearing — designed to resolve PACA claims on the merits. See 7 C.F.R. § 47.6(b). Whether a foreign producer is entitled to a waiver is determined not by an administrative law judge, but by the Secretary or designated DOA staff. In effect, DOA regulations establish a wholly independent proceeding to decide whether a foreign producer may prosecute a PACA reparation claim without filing a bond. Because DOA procedures make no provision for the re-examination of this decision, and because the waiver determination occurs completely outside the context of any PACA adjudication, judicial review of the Secretary’s decision “will not disrupt the orderly process of [any] adjudication” before the agency. Port of Boston Marine Terminal Ass’n, 400 U.S. at 71, 91 S.Ct. at 209. The denial of a waiver also has clear legal consequences for Exportal. If Expor-tal is unable or unwilling to pay the bond, it must forego its right to avail itself of the administrative remedy contemplated by PACA. If it does furnish the bond, it must forego its qualified right, recognized by PACA and DOA regulations, not to lose the use of $364,000 during the pendency of the reparation proceeding — a deprivation that cannot be meaningfully remedied on appeal from a reparations order. We therefore have no difficulty concluding that the Secretary’s decision to deny a waiver is a “final” order for purposes of judicial review. We also reject the Secretary’s contention that the district court has initial appellate jurisdiction over the Secretary’s decision. The Secretary bases this argument on Florida Light & Power Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The issue in that case was whether an agency decision not to initiate a license revocation proceeding came within the scope of a statute providing for court of appeals jurisdiction, under the Administrative Orders Review Act, over final orders in “licensing proceedings.” The Court answered this question affirmatively, noting that, “[i]n the absence of specific evidence of contrary congressional intent, ... orders resolving issues preliminary or ancillary to the core issue in a proceeding should be reviewed in the same forum as the final order resolving the core issue.” Id. at 743, 105 S.Ct. at 1606. The Secretary maintains that because the district court has jurisdiction over the “core” issue of whether the Secretary has properly ordered reparations against a broker under PACA, the district court should also have jurisdiction over the “preliminary” issue of whether a foreign producer is entitled to a waiver of the bond requirement. The problem with the Secretary’s analysis is that Congress has furnished “specific evidence” of its intent that the court of appeals exercise jurisdiction over final orders disposing of “preliminary” issues in PACA reparation proceedings. The Administrative Orders Review Act expressly provides for direct (and exclusive) review in the court of appeals of every final order issued pursuant to PACA except for reparation orders. See 28 U.S.C. § 2342(2). This division of appellate responsibility is perfectly understandable. An appeal from a reparation order is not a genuine “review” action but rather a trial de novo, see 7 U.S.C. § 499g(c), a proceeding possible only in district court. The district court, however, has no special competence to review nonreparation orders for legal error. Direct review of these orders in the court of appeals reflects the Administrative Orders Review Act’s general objective to eliminate the “duplication of effort” attendant upon successive appeals in the district court and the court of appeals based on the same Administrative Procedure Act (“APA”) standards of review. Lorion, 470 U.S. at 744, 105 S.Ct. at 1607. Indeed, if we needed to recur to rules of statutory construction to decipher Congress’ intention on where appellate jurisdiction lies in this case, we would follow the presumption against inferring “that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeals.” Id. at 745, 105 S.Ct. at 1607 (emphasis added). B. The Denial of Exportal’s Waiver Request 1. The Secretary’s Claim of Discretion under Section 47.6(b) DOA regulations speak in categorical terms: the furnishing of a bond shall be waived if the complainant is a resident of a country which permits filing of a complaint by a resident of the United States against a citizen of that country without the furnishing of a bond. 7 C.F.R. § 47.6(b) (emphasis added). Despite these clear terms, the Secretary contends that he retains discretion under the regulations to deny a waiver even when a foreign producer can make the showing of reciprocity that section 47.6(b) requires. Noting that PACA provides merely that “the Secretary shall have the authority to waive the furnishing of a bond” upon the requisite showing of reciprocity, 7 U.S.C. § 499f(e) (emphasis added), the Secretary maintains that section 47.6(b) should be construed to restate this permissive grant of statutory authority. Once again, we are constrained to disagree with the Secretary’s analysis. The scope of the waiver authority delegated to the Secretary by 7 U.S.C. § 499f(e) is largely beside the point. For, even assuming that the Secretary could adopt a rule preserving his discretion to deny a waiver to a foreign producer who shows that its nation does not impose a bond requirement, the fact remains that the Secretary has adopted section 47.6(b), under which the Secretary’s discretion has been strictly limited by the plain terms of the regulation. “It is axiomatic that an agency must adhere to its own regulations .... ” Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536 (D.C.Cir.1986) (Scalia, J.); see Accardi v. Shaughnessy, 347 U.S. 260, 265-67, 74 S.Ct. 499, 502-03, 98 L.Ed. 681 (1954). The issue, then, is whether the Secretary has faithfully applied section 47.6(b) in determining that it could reject Exportal’s waiver request notwithstanding its showing of reciprocity. This is a question of interpretation. It is well established that a reviewing court owes deference to an agency’s construction of its own regulations. See, e.g., Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). But it is equally well established that this deference is due “only when the plain meaning of the rule itself is doubtful or ambiguous_ Deference to agency interpretations is not in order if the rule’s meaning is clear on its face.” Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C.Cir.1984); see also Udall, 380 U.S. at 16, 85 S.Ct. at 801. Courts’ reliance on the “plain meaning” rule in this setting is not a product of some fetishistic attraction to legal “formalism.” In order to infuse a measure of public accountability into administrative practices, the APA mandates that agencies provide interested parties notice and an opportunity for comment before promulgating rules of general applicability. See 5 U.S.C. § 553(b), (c) (1988). See generally American Bus Ass’n v. United States, 627 F.2d 525, 528 (D.C.Cir.1980). This right to participate in the rulemaking process can be meaningfully exercised, however, only if the public can understand proposed rules as meaning what they appear to say. Moreover, if permitted to adopt unforeseen interpretations, agencies could constructively amend their regulations while evading their duty to engage in notice and comment procedures. As applied to agency regulations, then, the plain meaning doctrine is an interpretive norm essential to perfecting the scheme of administrative governance established by the APA. Cf. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv.L.Rev. 405, 412 (1989) (arguing that interpretation should be guided by “principles that improve the performance of modern government”). In this case, the plain meaning of the DOA’s regulations is dispositive. Section 47.6(b) states that the bond requirement “shall be waived” if the foreign producer makes the requisite showing of reciprocity. “ ‘Shall’ is a term of legal significance, in that it is mandatory or imperative, not merely precatory.” Conoco, Inc. v. Norwest Bank Mason City, 767 F.2d 470, 471 (8th Cir.1985); see, e.g., Continental Airlines, Inc. v. Department of Transp., 856 F.2d 209, 216 (D.C.Cir.1988) (mandatory time limits for agency action); Weil v. Markowitz, 829 F.2d 166, 171 (D.C.Cir.1987) (mandatory sanctions for attorney misconduct); Association of American R.R. v. Costle, 562 F.2d 1310, 1312 (D.C.Cir.1977) (mandatory rulemaking directive). Nothing in the text of section 47.6(b) puts a reader on notice that the regulation is using “shall” in an unorthodox manner. Conceding that his interpretation of section 47.6(b) is “anomalous,” the Secretary nonetheless resists the conclusion that his reading is foreclosed by the plain meaning rule. The Secretary notes that although the ordinary connotation of “shall” is “must,” courts construing statutes have sometimes discerned in the legislative history or structure of the statute an intention to depart from the plain meaning of this term. See, e.g., Buckley v. Valeo, 519 F.2d 821, 893 n. 191 (D.C.Cir.1975), aff'd in part and rev’d in part on other grounds, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). According to the Secretary, we should defer to his conclusion that the DOA intended “shall” to mean “may” when it promulgated section 47.6(b). We reject this contention. As we have mentioned, we can discern no evidence that the DOA actually did intend to use “shall” to mean “may” in section 47.6(b). But even more fundamentally, we disagree with the Secretary’s suggestion that we should read section 47.6(b) as if it were a statute. We might be willing, in extraordinary circumstances, to entertain the suggestion that a legislature intended something different from what a statute appears plainly to say. See, e.g., Consolidated Rail Corp. v. United States, 896 F.2d 574, 578 (D.C.Cir.1990); Belland v. Pension Benefit Guar. Corp., 726 F.2d 839, 844 n. 6 (D.C.Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 245, 83 L.Ed.2d 183 (1984). But legislatures are not constrained by procedural requirements akin to those in the APA. To protect the integrity of these procedures, we cannot permit an agency to rely on its unexpressed intentions to trump the ordinary import of its regulatory language. Because the DOA has expressed itself in language that has a plain meaning, we look no further than the text of its rule. In sum, section 47.6(b)’s directive that “the furnishing of a bond shall be waived ” unequivocally conveys that the Secretary must grant a waiver when the condition of reciprocity is met. Unless and until this language is amended, the DOA must abide by it. 2. Reciprocity Under Chilean Law As an alternative ground for upholding the Secretary’s denial of Exportáis waiver request, counsel for the Secretary suggests that Exportal in fact failed to make the requisite showing of reciprocity demanded by section 47.6(b). According to counsel, a foreign producer must demonstrate not merely that its nation’s legal system does not require United States citizens to file bonds in legal proceedings, but also that the producer’s nation affords United States producers an administrative remedy analogous to PACA. Chile, the Secretary’s counsel maintains, provides no such remedy. We cannot uphold the Secretary’s order on this basis. The DOA’s letter denying Exportáis waiver request offered only one ground for this decision: the Secretary’s alleged discretion to deny a waiver in all cases. The suggestion that Exportal failed to demonstrate reciprocity in Chilean law is merely “appellate counsels post hoc rationalization ] for agency action.” Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 2870, 77 L.Ed.2d 443 (1983). On the record before us, we are in no position to assess any claims on the state of Chilean law. Because the Secretary disposed of Exportal’s waiver request pursuant to an asserted exercise of discretion, the DOA had no occasion to address the merits of Exportal’s showing of reciprocity. And although we do not discern in either section 47.6(b) or 7 U.S.C. § 499f(e) a requirement that the nation of a foreign complainant have a remedial scheme that precisely mirrors PACA, we will leave it to the Secretary to address this question in the first instance. Consequently, subject to appropriate review by this court, the Secretary remains free on remand to determine whether Chilean law satisfies the reciprocity requirement. III. Conclusion We grant Exportal’s petition for review. The determination to deny waiver of a bond prior to initiation of a PACA reparation proceeding is a “final order” under the Administrative Orders Review Act. By directing that “the furnishing of a bond shall be waived” if the nation of a foreign producer does not require United States complainants to file a bond, section 47.6(b) leaves the Secretary with no discretion to deny a waiver when the requisite condition is met. The Secretary remains free on remand, however, to address whether Ex-portal has shown that Chilean law satisfies the reciprocity requirement imposed by section 47.6(b). It is so ordered. . When Exportal filed its petition, Peter Myers was Acting Secretary of Agriculture. Clayton Yeutter, the current Secretary of Agriculture, has been substituted pursuant to Federal Rule of Appellate Procedure 43(c)(1). . PACA comprises chapter 20A of title 7. . The Secretary also suggests that its denial of Exportal’s waiver is not a final order because his ruling was not made after a hearing. However, the absence of a hearing is not an impediment to review under the Administrative Orders Review Act “when a hearing is not required by law and it appears from the pleadings and affidavits filed by the parties that no genuine issue of material fact is presented." 28 U.S.C. § 2347(b)(2) (1982). Such is the case here. . Of course, not all "preliminary" determinations are “final orders" for purposes of the Administrative Orders Review Act. When they are, however, initial jurisdiction resides in the court of appeals. . We also reject the Secretary’s suggestion that we should dismiss Exportal’s petition on grounds of ripeness or exhaustion of remedies. Exportáis challenge is ripe because the Secretary has applied section 47.6(b) to Exportal, and because no further agency action is necessary to make the Secretary's decision “fit” for judicial resolution. See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The exhaustion of remedies doctrine poses no bar because DOA regulations afford Exportal no avenue for seeking agency review of the Secretary’s decision to deny a waiver. See Myers v. Bethlehem Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). 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_casesource	158	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. SMITH v. HOOEY, JUDGE. No. 198. Argued December 11, 1968. Decided January 20, 1969. Charles Alan Wright, by appointment of the Court, post, p. 813, argued the cause and filed a brief for petitioner. Joe S. Moss argued the cause for respondent. With him on the brief were Crawford C. Martin, Attorney General of Texas, Nola White, First Assistant Attorney General, A. J. Carubbi, Jr., Executive Assistant Attorney General, Robert C. Flowers and Gilbert J. Pena, Assistant Attorneys General, and Carol S. Vance. Mr. Justice Stewart delivered the opinion of the Court. In Klopfer v. North Carolina, 386 U. S. 213, this Court held that, by virtue of the Fourteenth Amendment, the Sixth Amendment right to a speedy trial is enforceable against the States as “one of the most basic rights preserved by our Constitution.” Id., at 226. The case before us involves the nature and extent of the obligation imposed upon a State by that constitutional guarantee, when the person under the state criminal charge is serving a prison sentence imposed by another jurisdiction. In 1960 the petitioner was indicted in Harris County, Texas, upon a charge of theft. He was then, and still is, a prisoner in the federal penitentiary at Leavenworth, Kansas. Shortly after the state charge was filed against him, the petitioner mailed a letter to the Texas trial court requesting a speedy trial. In reply, he was notified that “he would be afforded a trial within two weeks of any date [he] might specify at which he could be present.” Thereafter, for the next six years, the petitioner, “by various letters, and more formal so-called ‘motions/ ” continued periodically to ask that he be brought to trial. Beyond the response already alluded to, the State took no steps to obtain the petitioner’s appearance in the Harris County trial court. Finally, in 1967, the petitioner filed in that court a verified motion to dismiss the charge against him for want of prosecution. No action was taken on the motion. The petitioner then brought a mandamus proceeding in the Supreme Court of Texas, asking for an order to show cause why the pending charge should not be dismissed. Mandamus was refused in an informal and unreported order of the Texas Supreme Court. The petitioner then sought certiorari in this Court. After inviting and receiving a memorandum from the Solicitor General of the United States, 390 U. S. 937, we granted certiorari to consider the constitutional questions this case presents. 392 U. S. 925. In refusing to issue a writ of mandamus, the Supreme Court of Texas relied upon and reaffirmed its decision of a year earlier in Cooper v. State, 400 S. W. 2d 890. In that ease, as in the present one, a state criminal charge was pending against a man who was an inmate of a federal prison. He filed a petition for a writ of habeas corpus ad prosequendum in the Texas trial court, praying that he be brought before the court for trial, or that the charge against him be dismissed. Upon denial of that motion, he applied to the Supreme Court of Texas for a writ of mandamus. In denying the application, the court acknowledged that an inmate of a Texas prison would have been clearly entitled to the relief sought as a matter of constitutional right, but held that “a different rule is applicable when two separate sovereignties are involved.” 400 S. W. 2d, at 891. The court viewed the difference as “one of power and authority.” Id., at 892. While acknowledging that if the state authorities were “ordered to proceed with the prosecution . . . and comply with certain conditions specified by the federal prison authorities, the relator would be produced for trial in the state court,” id., at 891, it nonetheless denied relief, because it thought “[t]he true test should be the power and authority of the state unaided by any waiver, permission or act of grace of any other authority.” Id., at 892. Four Justices dissented, expressing their belief that “where the state has the power to afford the accused a speedy trial it is under a duty to do so.” Id., at 893. There can be no doubt that if the petitioner in the present case had been at large for a six-year period following his indictment, and had repeatedly demanded that he be brought to trial, the State would have been under a constitutional duty to try him. Klopfer v. North Carolina, supra, at 219. And Texas concedes that if during that period he had been confined in a Texas prison for some other state offense, its obligation would have been no less. But the Texas Supreme Court has held that because petitioner is, in fact, confined in a federal prison, the State is totally absolved from any duty at all under the constitutional guarantee. We cannot agree. The historic origins of the Sixth Amendment right to a speedy trial were traced in some detail by The Chief Justice in his opinion for the Court in Klopfer, supra, at 223-226, and we need not review that history again here. Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120. These demands are both aggravated and compounded in the case of an accused who is imprisoned by another jurisdiction. At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from “undue and oppressive incarceration prior to trial.” But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him. And while it might be argued that a person already in prison would be less likely than others to be affected by “anxiety and concern accompanying public accusation,” there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, at 221-222. In the opinion of the former Director of the Federal Bureau of Prisons, “[I]t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination toward self-improvement.” Finally, it is self-evident that “the possibilities that long delay will impair the ability of an accused to defend himself” are markedly increased when the accused is incarcerated in another jurisdiction. Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, his ability to confer with potential defense witnesses, or even to keep track of their whereabouts, is obviously impaired. And, while “evidence and witnesses disappear, memories fade, and events lose their perspective,” a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time. Despite all these considerations, the Texas Supreme Court has said that the State is under no duty even to attempt to bring a man in the petitioner’s position to trial, because “[t]he question is one of power and authority and is in no way dependent upon how or in what manner the federal sovereignty may proceed in a discretionary way under the doctrine of comity.” Yet Texas concedes that if it did make an effort to secure a federal prisoner’s appearance, he would, in fact, “be produced for trial in the state court.” This is fully confirmed by the memorandum that the Solicitor General has filed in the present case: “[T]he Bureau of Prisons would doubtless have made the prisoner available if a writ of habeas corpus ad prosequendum had been issued by the state court. It does not appear, however, that the State at any point sought to initiate that procedure in this case.” In view of these realities, we think the Texas court was mistaken in allowing doctrinaire concepts of “power” and “authority” to submerge the practical demands of the constitutional right to a speedy trial. Indeed, the rationale upon which the Texas Supreme Court based its denial of relief in this case was wholly undercut last Term in Barber v. Page, 390 U. S. 719. In that case we dealt with another Sixth Amendment guarantee — the right of confrontation. In holding that Oklahoma could not excuse its failure to produce a prosecution witness simply because he was in a federal prison outside the State, we said: “We start with the fact that the State made absolutely no effort to obtain the presence of Woods at trial other than to ascertain that he was in a federal prison outside Oklahoma. It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that ‘it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless/ 5 Wigmore, Evidence § 1404 (3d ed. 1940). “Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. . . . “. . . The Court of Appeals majority appears to have reasoned that because the State would have had to request an exercise of discretion on the part of federal authorities, it was under no obligation to make any such request. Yet as Judge Aldrich, sitting by designation, pointed out in dissent below, ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ 381 F. 2d, at 481. In short, a witness is not ‘unavailable’ for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial. The State made no such effort here, and, so far as this record reveals, the sole reason why Woods was not present to testify in person was because the State did not attempt to seek his presence. The right of confrontation may not be dispensed with so lightly.” 390 U. S., at 723-725 (footnotes omitted). By a parity of reasoning we hold today that the Sixth Amendment right to a speedy trial may not be dispensed with so lightly either. Upon the petitioner’s demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the Harris County court for trial. The order of the Supreme Court of Texas is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . U. S. Const., Amdt. VI. On May 5, 1960, the sheriff of Harris County notified the warden at Leavenworth that a warrant for the petitioner’s arrest was outstanding, and asked for notice of “the minimum release date.” That date is apparently January 6, 1970. Most of the facts have been stipulated. See also Lawrence v. State, 412 S. W. 2d 40. For this proposition the court cited its 40-year-old decision in Moreau v. Bond, 114 Tex. 468, 271 S. W. 379. The court in that case said: “Those rights, fundamental in their nature, which have been guaranteed by the Bill of Rights cannot be the subject of judicial discretion. Judicial discretion is a legal discretion and not a personal discretion; a legal discretion to be exercised in conformity to the Constitution and the laws of the land. It is only in the absence of positive law or fixed rule that the judge may decide by his view of expediency or of the demands of justice or equity. The Bill of Rights, Section 10 of Article I of the Constitution, provides: ‘In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury’.... “None of the reasons suggested, either in the order overruling relator’s motion for trial or in the answer to the petition for mandamus here, are good or have any foundation in law or justice. Certainly, under our Constitution and our laws, the relator is entitled to a trial on the charge against him.” 114 Tex., at 470, 271 S. W., at 379-380. The basis of the decision thus appears to have been the speedy-trial guarantee contained in the state constitution. “Today, each of the 50 States guarantees the right to a speedy trial to its citizens.” Klopfer v. North Carolina, supra, at 226; see Note, The Right to a Speedy Criminal Trial, 57 Col. L. Rev. 846, 847 (1957); cf. Note, The Lagging Right to a Speedy Trial, 51 Va. L. Rev. 1587 (1965). See Schindler, Interjurisdictional Conflict and the Right to a Speedy Trial, 35 U. Cin. L. Rev. 179, 182-183 (1966). See, e. g., Evans v. Mitchell, 200 Kan. 290, 436 P. 2d 408 (holding that Kansas had no duty to bring to trial a person serving a 15-year sentence in a Washington prison, although the pendency of the Kansas charge prevented any possibility of clemency or conditional pardon in Washington and made it impossible for the prisoner to take part in certain rehabilitation programs or to become a trusty in the Washington prison). The existence of an outstanding criminal charge no longer automatically makes a prisoner ineligible for parole in the federal prison system. 28 CFR § 2.9 (1968); see Rules of the United States Board of Parole 17-18 (1965). But as late as 1959 the Director of the Federal Bureau of Prisons wrote: “Today the prisoners with detainers are evaluated individually but there remains a tendency to consider them escape risks and to assign them accordingly. In many instances this evaluation and decision may be correct, for the detainer can aggravate the escape potentiality of a prisoner.” Bennett, “The Last Full Ounce,” 23 Fed. Prob. No. 2, p. 20, at 21 (1959). See also Note, Detainers and the Correctional Process, 1966 Wash. U. L. Q. 417, 418-423. Bennett, supra, n. 8, at 21; see Walther, Detainer Warrants and the Speedy Trial Provision, 46 Marq. L. Rev. 423, 427-428 (1963). Note, Effective Guaranty of a Speedy Trial for Convicts in Other Jurisdictions, 77 Yale L. J. 767, 769 (1968). Cooper v. State, 400 S. W. 2d 890, 892. The only other basis suggested by the Texas Supreme Court for its denial of relief in Cooper was the expense that would be involved in bringing a federal prisoner to trial, the court noting that a directive of the Federal Bureau of Prisons provided that “satisfactory arrangements for payment of expenses [must be] made before the prisoner is actually removed to the place of trial.” Id., at 891. But the expense involved in effectuating an occasional writ of habeas corpus ad prosequendum would hardly be comparable to what is required to implement other constitutional rights, e. g., the appointment of counsel for every indigent defendant. Gideon v. Wainwright, 372 U. S. 335. And custodial as well as transportation expenses would also be incurred if the State brought the petitioner to trial after his federal sentence had run. If the petitioner is, as the State maintains, not an indigent, there is nothing to prevent a fair assessment of necessary expenses against him. Finally, the short and perhaps the best answer to any objection based upon expense was given by the Supreme Court of Wisconsin in a case much like the present one: “We will not put a price tag upon constitutional rights.” State ex rel. Fredenberg v. Byrne, 20 Wis. 2d 504, 512, 123 N. W. 2d 305, 310. Cooper v. State, supra, at 891. That memorandum also states: “It is the policy of the United States Bureau of Prisons to encourage the expeditious disposition of prosecutions in state courts against federal prisoners. The normal procedure under which production is effected is pursuant to a writ ad prosequendum from the state court. Almost invariably, the United States has complied with such writs and extended its cooperation to the state authorities. The Bureau of Prisons informs us that removals are normally made by United States marshals, with the expenses borne by the state authorities. In some instances, to mitigate the cost to the State, the Bureau of Prisons has removed an inmate to a federal facility close to the site of prosecution. In a relatively small number of instances, prisoners have been produced pursuant to 18 U. S. C. § 4085, which provides in part: “ ‘Whenever any federal prisoner has been indicted, informed against, or convicted of a felony in a court of record of any State or the District of Columbia, the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor or the executive authority thereof, and upon the presentation of a certified copy of such indictment, information or judgment of conviction, cause such a person, prior to his release', to be transferred to a penal or correctional institution within such State or District.’ ” Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. 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Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
sc_issuearea	H	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. Charles C. LIU, et al., Petitioners v. SECURITIES AND EXCHANGE COMMISSION No. 18-1501 Supreme Court of the United States. Argued March 3, 2020 Decided June 22, 2020 Gregory G. Rapawy, Washington, D.C., for the petitioners. Deputy Solicitor General Malcolm L. Stewart for the respondent. Hervé Gouraige, Sills Cummis & Gross P.C., Newark, New Jersey, Michael K. Kellogg, Gregory G. Rapawy, Benjamin S. Softness, Julia L. Haines, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Washington, D.C., for Petitioners. Robert B. Stebbins, General Counsel, Michael A. Conley, Solicitor, Hope H. Augustini, Jeffrey A. Berger, David D. Lisitza, Daniel Staroselsky, Senior Litigation Counsel, Kerry J. Dingle, Senior Counsel, Securities and Exchange, Commission, Washington, D.C., Noel J. Francisco, Solicitor General, Malcolm L. Stewart, Deputy Solicitor General, Vivek Suri, Assistant to the Solicitor General, Department of Justice, Washington, D.C., for Respondent. Justice SOTOMAYOR delivered the opinion of the Court. In Kokesh v. SEC, 581 U. S. ----, 137 S.Ct. 1635, 198 L.Ed.2d 86 (2017), this Court held that a disgorgement order in a Securities and Exchange Commission (SEC) enforcement action imposes a "penalty" for the purposes of 28 U.S.C. § 2462, the applicable statute of limitations. In so deciding, the Court reserved an antecedent question: whether, and to what extent, the SEC may seek "disgorgement" in the first instance through its power to award "equitable relief " under 15 U.S.C. § 78u(d)(5), a power that historically excludes punitive sanctions. The Court holds today that a disgorgement award that does not exceed a wrongdoer's net profits and is awarded for victims is equitable relief permissible under § 78u(d)(5). The judgment is vacated, and the case is remanded for the courts below to ensure the award was so limited. I A Congress authorized the SEC to enforce the Securities Act of 1933, 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq., and the Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U.S.C. § 78a et seq., and to punish securities fraud through administrative and civil proceedings. In administrative proceedings, the SEC can seek limited civil penalties and "disgorgement." See § 77h-1(e) ("In any cease-and-desist proceeding under subsection (a), the Commission may enter an order requiring accounting and disgorgement"); see also § 77h-1(g) ("Authority to impose money penalties"). In civil actions, the SEC can seek civil penalties and "equitable relief." See, e.g., § 78u(d)(5) ("In any action or proceeding brought or instituted by the Commission under any provision of the securities laws,... any Federal court may grant... any equitable relief that may be appropriate or necessary for the benefit of investors"); see also § 78u(d)(3) ("Money penalties in civil actions" (quotation modified)). Congress did not define what falls under the umbrella of "equitable relief." Thus, courts have had to consider which remedies the SEC may impose as part of its § 78u(d)(5) powers. Starting with SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301 (CA2 1971), courts determined that the SEC had authority to obtain what it called "restitution," and what in substance amounted to "profits" that "merely depriv[e]" a defendant of "the gains of... wrongful conduct." Id., at 1307-1308. Over the years, the SEC has continued to request this remedy, later referred to as "disgorgement," and courts have continued to award it. See SEC v. Commonwealth Chemical Securities, Inc., 574 F.2d 90, 95 (CA2 1978) (explaining that, when a court awards "[d]isgorgement of profits in an action brought by the SEC," it is "exercising the chancellor's discretion to prevent unjust enrichment"); see also SEC v. Blatt, 583 F.2d 1325, 1335 (CA5 1978) ; SEC v. Washington Cty. Util. Dist., 676 F.2d 218, 227 (CA6 1982). In Kokesh, this Court determined that disgorgement constituted a "penalty" for the purposes of 28 U.S.C. § 2462, which establishes a 5-year statute of limitations for "an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture." The Court reached this conclusion based on several considerations, namely, that disgorgement is imposed as a consequence of violating public laws, it is assessed in part for punitive purposes, and in many cases, the award is not compensatory. 581 U. S., at ---- - ----, 137 S.Ct., at 1643-1644. But the Court did not address whether a § 2462 penalty can nevertheless qualify as "equitable relief " under § 78u(d)(5), given that equity never "lends its aid to enforce a forfeiture or penalty." Marshall v. Vicksburg, 15 Wall. 146, 149, 21 L.Ed. 121 (1873). The Court cautioned, moreover, that its decision should not be interpreted "as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings." Kokesh, 581 U. S., at ----, n. 3, 137 S.Ct., at 1642 n. 3. This question is now squarely before the Court. B The SEC action and disgorgement award at issue here arise from a scheme to defraud foreign nationals. Petitioners Charles Liu and his wife, Xin (Lisa) Wang, solicited nearly $27 million from foreign investors under the EB-5 Immigrant Investor Program (EB-5 Program). 754 Fed.Appx. 505, 506 (CA9 2018) (case below). The EB-5 Program, administered by the U. S. Citizenship and Immigration Services, permits noncitizens to apply for permanent residence in the United States by investing in approved commercial enterprises that are based on "proposals for promoting economic growth." See USCIS, EB-5 Immigrant Investor Program, https://www.uscis.gov/eb-5. Investments in EB-5 projects are subject to the federal securities laws. Liu sent a private offering memorandum to prospective investors, pledging that the bulk of any contributions would go toward the construction costs of a cancer-treatment center. The memorandum specified that only amounts collected from a small administrative fee would fund " 'legal, accounting and administration expenses.' " 754 Fed.Appx. at 507. An SEC investigation revealed, however, that Liu spent nearly $20 million of investor money on ostensible marketing expenses and salaries, an amount far more than what the offering memorandum permitted and far in excess of the administrative fees collected. 262 F.Supp.3d 957, 960-964 (CD Cal. 2017). The investigation also revealed that Liu diverted a sizable portion of those funds to personal accounts and to a company under Wang's control. Id., at 961, 964. Only a fraction of the funds were put toward a lease, property improvements, and a proton-therapy machine for cancer treatment. Id., at 964-965. The SEC brought a civil action against petitioners, alleging that they violated the terms of the offering documents by misappropriating millions of dollars. The District Court found for the SEC, granting an injunction barring petitioners from participating in the EB-5 Program and imposing a civil penalty at the highest tier authorized. Id., at 975, 976. It also ordered disgorgement equal to the full amount petitioners had raised from investors, less the $234,899 that remained in the corporate accounts for the project. Id., at 975-976. Petitioners objected that the disgorgement award failed to account for their business expenses. The District Court disagreed, concluding that the sum was a "reasonable approximation of the profits causally connected to [their] violation." Ibid. The court ordered petitioners jointly and severally liable for the full amount that the SEC sought. App. to Pet. for Cert. 62a. The Ninth Circuit affirmed. It acknowledged that Kokesh "expressly refused to reach" the issue whether the District Court had the authority to order disgorgement. 754 Fed.Appx. at 509. The court relied on Circuit precedent to conclude that the "proper amount of disgorgement in a scheme such as this one is the entire amount raised less the money paid back to the investors." Ibid. ; see also SEC v. JT Wallenbrock & Assocs., 440 F.3d 1109, 1113, 1114 (CA9 2006) (reasoning that it would be "unjust to permit the defendants to offset... the expenses of running the very business they created to defraud... investors"). We granted certiorari to determine whether § 78u(d)(5) authorizes the SEC to seek disgorgement beyond a defendant's net profits from wrongdoing. 589 U. S. ----, 140 S.Ct. 451, 205 L.Ed.2d 265 (2019). II Our task is a familiar one. In interpreting statutes like § 78u(d)(5) that provide for "equitable relief," this Court analyzes whether a particular remedy falls into "those categories of relief that were typically available in equity." Mertens v. Hewitt Associates, 508 U.S. 248, 256, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) ; see also CIGNA Corp. v. Amara, 563 U.S. 421, 439, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011) ; Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577 U. S. 136, 142, 136 S.Ct. 651, 193 L.Ed.2d 556 (2016). The "basic contours of the term are well known" and can be discerned by consulting works on equity jurisprudence. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 217, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). These works on equity jurisprudence reveal two principles. First, equity practice long authorized courts to strip wrongdoers of their ill-gotten gains, with scholars and courts using various labels for the remedy. Second, to avoid transforming an equitable remedy into a punitive sanction, courts restricted the remedy to an individual wrongdoer's net profits to be awarded for victims. A Equity courts have routinely deprived wrongdoers of their net profits from unlawful activity, even though that remedy may have gone by different names. Compare, e.g., 1 D. Dobbs, Law of Remedies § 4.3(5), p. 611 (1993) ("Accounting holds the defendant liable for his profits"), with id., § 4.1(1), at 555 (referring to "restitution" as the relief that "measures the remedy by the defendant's gain and seeks to force disgorgement of that gain"); see also Restatement (Third) of Restitution and Unjust Enrichment § 51, Comment a, p. 204 (2010) (Restatement (Third)) ("Restitution measured by the defendant's wrongful gain is frequently called 'disgorgement.' Other cases refer to an 'accounting' or an 'accounting for profits' "); 1 J. Pomeroy, Equity Jurisprudence § 101, p. 112 (4th ed. 1918) (describing an accounting as an equitable remedy for the violation of strictly legal primary rights). No matter the label, this "profit-based measure of unjust enrichment," Restatement (Third) § 51, Comment a, at 204, reflected a foundational principle: "[I]t would be inequitable that [a wrongdoer] should make a profit out of his own wrong," Root v. Railway Co., 105 U.S. 189, 207, 26 L.Ed. 975 (1882). At the same time courts recognized that the wrongdoer should not profit "by his own wrong," they also recognized the countervailing equitable principle that the wrongdoer should not be punished by "pay[ing] more than a fair compensation to the person wronged." Tilghman v. Proctor, 125 U.S. 136, 145-146, 8 S.Ct. 894, 31 L.Ed. 664 (1888). Decisions from this Court confirm that a remedy tethered to a wrongdoer's net unlawful profits, whatever the name, has been a mainstay of equity courts. In Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the Court interpreted a section of the Emergency Price Control Act of 1942 that encompassed a "comprehensiv[e]" grant of "equitable jurisdiction." Id., at 398, 66 S.Ct. 1086. "[O]nce [a District Court's] equity jurisdiction has been invoked" under that provision, the Court concluded, "a decree compelling one to disgorge profits... may properly be entered." Id., at 398-399, 66 S.Ct. 1086. Subsequent cases confirm the " 'protean character' of the profits-recovery remedy." Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 668, n. 1, 134 S.Ct. 1962, 188 L.Ed.2d 979 (2014). In Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987), the Court described "disgorgement of improper profits" as "traditionally considered an equitable remedy." Id., at 424, 107 S.Ct. 1831. While the Court acknowledged that disgorgement was a "limited form of penalty" insofar as it takes money out of the wrongdoer's hands, it nevertheless compared disgorgement to restitution that simply "'restor[es] the status quo,' " thus situating the remedy squarely within the heartland of equity. Ibid. In Great-West, the Court noted that an "accounting for profits" was historically a "form of equitable restitution." 534 U.S. at 214, n. 2, 122 S.Ct. 708. And in Kansas v. Nebraska, 574 U.S. 445, 135 S.Ct. 1042, 191 L.Ed.2d 1 (2015), a " 'basically equitable' " original jurisdiction proceeding, the Court ordered disgorgement of Nebraska's gains from exceeding its allocation under an interstate water compact. Id., at 453, 475, 135 S.Ct. 1042. Most recently, in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U. S. ----, 137 S.Ct. 954, 197 L.Ed.2d 292 (2017), the Court canvassed pre-1938 patent cases invoking equity jurisdiction. It noted that many cases sought an "accounting," which it described as an equitable remedy requiring disgorgement of ill-gotten profits. Id., at ----, 137 S.Ct, at. 964. This Court's "transsubstantive guidance on broad and fundamental" equitable principles, Romag Fasteners, Inc. v. Fossil Group, Inc., 590 U. S. ----, ----, 140 S.Ct. 1492, 1496, 206 L.Ed.2d 672 (2020), thus reflects the teachings of equity treatises that identify a defendant's net profits as a remedy for wrongdoing. Contrary to petitioners' argument, equity courts did not limit this remedy to cases involving a breach of trust or of fiduciary duty. Brief for Petitioners 28-29. As petitioners acknowledge, courts authorized profits-based relief in patent-infringement actions where no such trust or special relationship existed. Id., at 29; see also Root, 105 U.S. at 214 ("[I]t is nowhere said that the patentee's right to an account is based upon the idea that there is a fiduciary relation created between him and the wrong-doer by the fact of infringement"). Petitioners attempt to distinguish these patent cases by suggesting that an "accounting" was appropriate only because Congress explicitly conferred that remedy by statute in 1870. Brief for Petitioners 29 (citing the Act of July 8, 1870, § 55, 16 Stat. 206). But patent law had not previously deviated from the general principles outlined above: This Court had developed the rule that a plaintiff may "recover the amount of... profits that the defendants have made by the use of his invention" through "a series of decisions under the patent act of 1836, which simply conferred upon the courts of the United States general equity jurisdiction... in cases arising under the patent laws." Tilghman, 125 U.S. at 144, 8 S.Ct. 894. The 1836 statute, in turn, incorporated the substance of an earlier statute from 1819 which granted courts the ability to "proceed according to the course and principles of courts of equity" to "prevent the violation of patent-rights." Root, 105 U.S. at 193. Thus, as these cases demonstrate, equity courts habitually awarded profits-based remedies in patent cases well before Congress explicitly authorized that form of relief. B While equity courts did not limit profits remedies to particular types of cases, they did circumscribe the award in multiple ways to avoid transforming it into a penalty outside their equitable powers. See Marshall, 15 Wall. at 149. For one, the profits remedy often imposed a constructive trust on wrongful gains for wronged victims. The remedy itself thus converted the wrongdoer, who in many cases was an infringer, "into a trustee, as to those profits, for the owner of the patent which he infringes." Burdell v. Denig, 92 U.S. 716, 720, 23 L.Ed. 764 (1876). In "converting the infringer into a trustee for the patentee as regards the profits thus made," the chancellor "estimat[es] the compensation due from the infringer to the patentee." Packet Co. v. Sickles, 19 Wall. 611, 617-618, 22 L.Ed. 203 (1874) ; see also Clews v. Jamieson, 182 U.S. 461, 480, 21 S.Ct. 845, 45 L.Ed. 1183 (1901) (describing an accounting as involving a " 'distribution of the trust moneys among all the beneficiaries who are entitled to share therein' " in an action against the governing committee of a stock exchange). Equity courts also generally awarded profits-based remedies against individuals or partners engaged in concerted wrongdoing, not against multiple wrongdoers under a joint-and-several liability theory. See Ambler v. Whipple, 20 Wall. 546, 559, 22 L.Ed. 403 (1874) (ordering an accounting against a partner who had "knowingly connected himself with and aided in... fraud"). In Elizabeth v. Pavement Co., 97 U.S. 126, 24 L.Ed. 1000 (1878), for example, a city engaged contractors to install pavement in a manner that infringed a third party's patent. The patent holder brought a suit in equity to recover profits from both the city and its contractors. The Court held that only the contractors (the only parties to make a profit) were responsible, even though the parties answered jointly. Id., at 140 ; see also ibid. (rejecting liability for an individual officer who merely acted as an agent of the defendant and received a salary for his work). The rule against joint-and-several liability for profits that have accrued to another appears throughout equity cases awarding profits. See, e.g., Belknap v. Schild, 161 U.S. 10, 25-26, 16 S.Ct. 443, 40 L.Ed. 599 (1896) ("The defendants, in any such suit, are therefore liable to account for such profits only as have accrued to themselves from the use of the invention, and not for those which have accrued to another, and in which they have no participation"); Keystone Mfg. Co. v. Adams, 151 U.S. 139, 148, 14 S.Ct. 295, 38 L.Ed. 103 (1894) (reversing profits award that was based not on what defendant had made from infringement but on what third persons had made from the use of the invention); Jennings v. Carson, 4 Cranch 2, 21, 2 L.Ed. 531 (1807) (holding that an order requiring restitution could not apply to "those who were not in possession of the thing to be restored" and "had no power over it") (citing Penhallow v. Doane's Administrators, 3 Dall. 54, 1 L.Ed. 507 (1795) (reversing a restitution award in admiralty that ordered joint damages in excess of what each defendant received)). Finally, courts limited awards to the net profits from wrongdoing, that is, "the gain made upon any business or investment, when both the receipts and payments are taken into the account." Rubber Co. v. Goodyear, 9 Wall. 788, 804, 19 L.Ed. 566 (1870) ; see also Livingston v. Woodworth, 15 How. 546, 559-560, 14 L.Ed. 809 (1854) (restricting an accounting remedy "to the actual gains and profits... during the time" the infringing machine "was in operation and during no other period" to avoid "convert[ing] a court of equity into an instrument for the punishment of simple torts"); Seymour v. McCormick, 16 How. 480, 490, 14 L.Ed. 1024 (1854) (rejecting a blanket rule that infringing one component of a machine warranted a remedy measured by the full amounts of the profits earned from the machine); Mowry v. Whitney, 14 Wall. 620, 649, 20 L.Ed. 860 (1872) (vacating an accounting that exceeded the profits from infringement alone); Wooden-Ware Co. v. United States, 106 U.S. 432, 434-435, 1 S.Ct. 398, 27 L.Ed. 230 (1882) (explaining that an innocent trespasser is entitled to deduct labor costs from the gains obtained by wrongfully harvesting lumber). The Court has carved out an exception when the "entire profit of a business or undertaking" results from the wrongful activity. Root, 105 U.S. at 203. In such cases, the Court has explained, the defendant "will not be allowed to diminish the show of profits by putting in unconscionable claims for personal services or other inequitable deductions." Ibid. In Goodyear, for example, the Court affirmed an accounting order that refused to deduct expenses under this rule. The Court there found that materials for which expenses were claimed were bought for the purposes of the infringement and "extraordinary salaries" appeared merely to be "dividends of profit under another name." 9 Wall. at 803 ; see also Callaghan v. Myers, 128 U.S. 617, 663-664, 9 S.Ct. 177, 32 L.Ed. 547 (1888) (declining to deduct a defendant's personal and living expenses from his profits from copyright violations, but distinguishing the expenses from salaries of officers in a corporation). Setting aside that circumstance, however, courts consistently restricted awards to net profits from wrongdoing after deducting legitimate expenses. Such remedies, when assessed against only culpable actors and for victims, fall comfortably within "those categories of relief that were typically available in equity." Mertens, 508 U.S. at 256, 113 S.Ct. 2063. C By incorporating these longstanding equitable principles into § 78u(d)(5), Congress prohibited the SEC from seeking an equitable remedy in excess of a defendant's net profits from wrongdoing. To be sure, the SEC originally endeavored to conform its disgorgement remedy to the common-law limitations in § 78u(d)(5). Over the years, however, courts have occasionally awarded disgorgement in three main ways that test the bounds of equity practice: by ordering the proceeds of fraud to be deposited in Treasury funds instead of disbursing them to victims, imposing joint-and-several disgorgement liability, and declining to deduct even legitimate expenses from the receipts of fraud. The SEC's disgorgement remedy in such incarnations is in considerable tension with equity practices. Petitioners go further. They claim that this Court effectively decided in Kokesh that disgorgement is necessarily a penalty, and thus not the kind of relief available at equity. Brief for Petitioners 19-20, 22-26. Not so. Kokesh expressly declined to pass on the question. 581 U. S., at ----, n. 3, 137 S.Ct. at 1642 n.3. To be sure, the Kokesh Court evaluated a version of the SEC's disgorgement remedy that seemed to exceed the bounds of traditional equitable principles. But that decision has no bearing on the SEC's ability to conform future requests for a defendant's profits to the limits outlined in common-law cases awarding a wrongdoer's net gains. The Government, for its part, contends that the SEC's interpretation of the equitable disgorgement remedy has Congress' tacit support, even if it exceeds the bounds of equity practice. Brief for Respondent 13-21. It points to the fact that Congress has enacted a number of other statutes referring to "disgorgement." That argument attaches undue significance to Congress' use of the term. It is true that Congress has authorized the SEC to seek "disgorgement" in administrative actions. 15 U.S.C. § 77h-1(e) ("In any cease-and-desist proceeding under subsection (a), the Commission may enter an order requiring accounting and disgorgement"). But it makes sense that Congress would expressly name the equitable powers it grants to an agency for use in administrative proceedings. After all, agencies are unlike federal courts where, "[u]nless otherwise provided by statute, all... inherent equitable powers... are available for the proper and complete exercise of that jurisdiction." Porter, 328 U.S. at 398, 66 S.Ct. 1086. Congress does not enlarge the breadth of an equitable, profit-based remedy simply by using the term "disgorgement" in various statutes. The Government argues that under the prior-construction principle, Congress should be presumed to have been aware of the scope of "disgorgement" as interpreted by lower courts and as having incorporated the (purportedly) prevailing meaning of the term into its subsequent enactments. Brief for Respondent 24. But "that canon has no application" where, among other things, the scope of disgorgement was "far from'settled.' " Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 330, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015). At bottom, even if Congress employed "disgorgement" as a shorthand to cross-reference the relief permitted by § 78u(d)(5), it did not silently rewrite the scope of what the SEC could recover in a way that would contravene limitations embedded in the statute. After all, such "statutory reference[s]" to a remedy grounded in equity "must, absent other indication, be deemed to contain the limitations upon its availability that equity typically imposes." Great-West, 534 U.S. at 211, n. 1, 122 S.Ct. 708. Accordingly, Congress' own use of the term "disgorgement" in assorted statutes did not expand the contours of that term beyond a defendant's net profits-a limit established by longstanding principles of equity. III Applying the principles discussed above to the facts of this case, petitioners briefly argue that their disgorgement award is unlawful because it crosses the bounds of traditional equity practice in three ways: It fails to return funds to victims, it imposes joint-and-several liability, and it declines to deduct business expenses from the award. Because the parties focused on the broad question whether any form of disgorgement may be ordered and did not fully brief these narrower questions, we do not decide them here. We nevertheless discuss principles that may guide the lower courts' assessment of these arguments on remand. A Section 78u(d)(5) restricts equitable relief to that which "may be appropriate or necessary for the benefit of investors." The SEC, however, does not always return the entirety of disgorgement proceeds to investors, instead depositing a portion of its collections in a fund in the Treasury. See SEC, Division of Enforcement, 2019 Ann. Rep. 16-17, https://www.sec.gov/files/enforcement-annual-report-2019.pdf. Congress established that fund in the Dodd-Frank Wall Street Reform and Consumer Protection Act for disgorgement awards that are not deposited in "disgorgement fund[s]" or otherwise "distributed to victims." 124 Stat. 1844. The statute provides that these sums may be used to pay whistleblowers reporting securities fraud and to fund the activities of the Inspector General. Ibid. Here, the SEC has not returned the bulk of funds to victims, largely, it contends, because the Government has been unable to collect them. The statute provides limited guidance as to whether the practice of depositing a defendant's gains with the Treasury satisfies the statute's command that any remedy be "appropriate or necessary for the benefit of investors." The equitable nature of the profits remedy generally requires the SEC to return a defendant's gains to wronged investors for their benefit. After all, the Government has pointed to no analogous common-law remedy permitting a wrongdoer's profits to be withheld from a victim indefinitely without being disbursed to known victims. Cf. Root, 105 U.S. at 214-215 (comparing the accounting remedy to a breach-of-trust action, where a court would require the defendant to "refund the amount of profit which they have actually realized"). The Government maintains, however, that the primary function of depriving wrongdoers of profits is to deny them the fruits of their ill-gotten gains, not to return the funds to victims as a kind of restitution. See, e.g., SEC, Report Pursuant to Section 308(C) of the Sarbanes Oxley Act of 2002, p. 3, n. 2 (2003) (taking the position that disgorgement is not intended to make investors whole, but rather to deprive wrongdoers of ill-gotten gains); see also 6 T. Hazen, Law of Securities Regulation § 16.18, p. 8 (rev. 7th ed. 2016) (concluding that the remedial nature of the disgorgement remedy does not mean that it is essentially compensatory and concluding that the "primary function of the remedy is to deny the wrongdoer the fruits of ill-gotten gains"). Under the Government's theory, the very fact that it conducted an enforcement action satisfies the requirement that it is "appropriate or necessary for the benefit of investors." But the SEC's equitable, profits-based remedy must do more than simply benefit the public at large by virtue of depriving a wrongdoer of ill-gotten gains. To hold otherwise would render meaningless the latter part of § 78u(d)(5). Indeed, this Court concluded similarly in Mertens when analyzing statutory language accompanying the term "equitable remedy." 508 U.S. at 253, 113 S.Ct. 2063 (interpreting the term "appropriate equitable relief "). There, the Court found that the additional statutory language must be given effect since the section "does not, after all, authorize... 'equitable relief'at large." Ibid. As in Mertens, the phrase "appropriate or necessary for the benefit of investors" must mean something more than depriving a wrongdoer of his net profits alone, else the Court would violate the "cardinal principle of interpretation that courts must give effect, if possible, to every clause and word of a statute." Parker Drilling Management Services, Ltd. v. Newton, 587 U. S. ----, ----, 139 S.Ct. 1881, 1890, 204 L.Ed.2d 165 (2019) (internal quotation marks omitted). The Government additionally suggests that the SEC's practice of depositing disgorgement funds with the Treasury may be justified where it is infeasible to distribute the collected funds to investors. Brief for Respondent 37. It is an open question whether, and to what extent, that practice nevertheless satisfies the SEC's obligation to award relief "for the benefit of investors" and is consistent with the limitations of § 78u(d)(5). The parties have not identified authorities revealing what traditional equitable principles govern when, for instance, the wrongdoer's profits cannot practically be disbursed to the victims. But we need not address the issue here. The parties do not identify a specific order in this case directing any proceeds to the Treasury. If one is entered on remand, the lower courts may evaluate in the first instance whether that order would indeed be for the benefit of investors as required by § 78u(d)(5) and consistent with equitable principles. B The SEC additionally has sought to impose disgorgement liability on a wrongdoer for benefits that accrue to his affiliates, sometimes through joint-and-several liability, in a manner sometimes seemingly at odds with the common-law rule requiring individual liability for wrongful profits. See, e.g., SEC v. Contorinis, 743 F.3d 296, 302 (CA2 2014) (holding that a defendant could be forced to disgorge not only what he "personally enjoyed from his exploitation of inside information, but also the profits of such exploitation that he channeled to friends, family, or clients"); SEC v. Clark, 915 F.2d 439, 454 (CA9 1990) ("It is well settled that a tipper can be required to disgorge his tippee's profits"); SEC v. Whittemore, 659 F.3d 1, 10 (CADC 2011) (approving joint-and-several disgorgement liability where there is 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_appel1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Maurice LIBERMAN, Joseph Grevey and Jack Grevey, co-partners, d.b.a. Duke City Lumber Company, and Duke City Lumber Company, a partnership, Appellants, v. George H. NAGEL, Appellees. No. 17642. United States Court of Appeals Ninth Circuit. March 23, 1963. Rehearing Denied May 15, 1963. McCutchen, Doyle, Brown & Enersen,. Burnham Enersen and Frederick O. Koenig, San Francisco, Cal., Jennings,. Strouss, Salmon & Trask, Phoenix, Ariz., for appellants. Moore, Romley, Killingsworth & Kaplan, Elias M. Romley, Philip A. Robbins, and James J. Cox, Jr., Phoenix, Ariz., forappellees. Before BARNES and HAMLEY, Circuit Judges, and BOWEN, District. Judge. BOWEN, District Judge. In this case in the Trial Court, the appellees (plaintiffs below) sued the appellants (defendants below) for breach of' an alleged oral option agreement made-September 20, 1958, and informally reduced to writing September 23, 1958, to-sell to appellees a one-half interest in a. Winslow, Arizona lumber milling business and related properties which were acquired November 6, 1958 by appellants from Arizona Timber Company, a competitor or associate of appellees and appellants, and which properties both appellees and appellants had separately prior to their making such option contract considered purchasing. The trial was by the Court without a jury and resulted in the final judgment -of July 28, 1961 for appellees for the total sum of $429,883.40 with interest thereon at 6% per annum from date of entry of the initial judgment on June 20, 1961. From that final judgment and from certain prior orders and the initial judgment, all inherent in the final judgment, appellants now appeal to this Court assigning as errors the following: (1) The District Court erred in finding that the parties reached any agreement concerning the purchase and operation of the mill during their informal conversation in Wins-low. (2) The District Court erred in concluding that the parties made a valid, lawful contract granting an option when Robert Jenkins signed one of the two letter agreements drafted by Maurice Liberman. (3) The District Court erred in awarding excessive damages. (4) The District Court erred in failing to hold that the proper measure of damages was the difference between appellees’ cost of performance and the market value of one-half the mill. (5) The District Court erred in concluding that appellees were entitled to more than the difference between cost of performance and the market value of one-half the mill if they were awarded the profits it found they might have earned from ■ ownership of one-half the mill. (6) The District Court erred in awarding damages without taking into account the costs of appellees’ performance. (7) The District Court erred in awarding as special damages anticipated profits in excess of the difference between the cost of appellees’ performance and the market value of one-half the mill. (8) The District Court erred in computing the profits it awarded. This action involves more than $10,000 exclusive of interest and costs, and is a diversity of citizenship case. The Trial Court had jurisdiction under 28 U.S.C. § 1332, and this Court has jurisdiction under id. § 1291. Hereinafter, the appellants will, unless the context otherwise indicates, be referred to when the following words or expressions are used: Liberman, Liberman group, Liberman partnership, Liberman interests, Duke City Lumber Co., Duke City. Similarly, upon like conditions, appellees will be referred to when the following words or expressions are used: Mrs. Nagel, Nagel, Nagels, Nagel Lumber & Timber Co., Nagel mill, Nagel business. Also, upon like conditions, when used hereinafter the words or expressions Gallagher, the Gallaghers, Gallagher mill, Gallagher-Winslow Mill, Gallagher timber, Arizona Timber Company, Gallagher Properties, Gallagher Arizona properties, Gallagher-Kaplan Mill will be deemed to refer to the identical sawmill, timber, timber contracts, business and properties which are the subject of the option agreement made September 20, and informally reduced to writing September 23, 1958, between appellees and appellants, and also to all properties acquired by appellants under the contract of November 6, 1958 with the Arizona Timber Company and the Gallagher interests. With timber purchased from the Sitgreaves National Forest and cut into lumber in their sawmill at Winslow, Arizona, George H. and Mabel J. Nagel, his wife, did a lumbering and sales business there from November, 1942 through September, 1957, under the name of Nagel Lumber & Timber Company, just owning the mill and the timber contracts. For a number of years prior to September 1958, the Nagel business operations had been dependent largely upon the timber sold to it from the Sitgreaves National Forest. For that reason the Nagel group, when the alleged option agreement was made, was well informed as to the available timber supply in that National Forest and the Winslow area. Mr. Nagel managed the Nagel mill most of the time prior to September 29, 1951, but on that date because of his poor health Mrs. Nagel became and has since remained the manager of the Nagel Mill and business. In 1952 or 1953 George M. Brown became assistant manager and so continued until 1955 when Robert T. Jenkins, son-in-law of George H. and Mabel J. Nagel and one of the partners, became and still is the assistant manager. Effective October 1, 1957 that business became and now is a partnership, of which George H. and his wife, Mabel J. Nagel, Robert T. Jenkins and his wife, Georgia Mae Jenkins, as general partners, and Georgia Mae Jenkins, Trustee for James Henry Nagel, a minor, as a limited partner, are the partnership members doing business as Nagel Lumber & Timber Co., a limited partnership, and said partners together with that partnership are the appellees here, and all of them at all times material to this action have been and are citizens of the State of Arizona. Maurice Liberman (partner of and spokesman for the other appellants) at age 12 left his native Poland and moved to France where he lived for 24 years. During much of that time he in France was engaged, first as an employee and later as a junior partner, in an import-export lumber business, wholesale and retail. In 1941 on account of war conditions he left France and came to New York where for about three months he worked in a retail lumber yard. Then he came west to McNary, Arizona and there worked in the McNary family’s Southwest Lumber Mills as a checker. After a short time, he moved to New Mexico, becoming assistant manager and soon manager of the same family’s new lumber concentration plant at Magdalena, New Mexico. Later he leased and independently operated that plant, then and now named Transit Remanufacturing Company, a corporation, whose stockholders are now-the same persons as the partners (the-brothers Maurice Liberman, and Joseph, and Jack Grevey) in the Duke City Lumber Company which owns other extensive-lumber milling and sales businesses. After establishing those operations in New Mexico, Liberman for that partnership in 1956 acquired or contracted for 62,500,000 feet of privately owned Aztec timber within the exterior boundaries, of the Sitgreaves National Forest and in the vicinity of the Winslow, Arizona lumber milling area, and the next year, 1957,. entered into timber pooling and milling-contracts with Arizona Timber Company,, which contracts yielded for Liberman a. substantial amount of lumber. In September, 1958, Liberman contacted Gallagher of the Gallagher-Kaplam Mill, known also as the Arizona Timber-Company, respecting the purchase of the-Gallagher properties in the Winslow, Arizona area, related to that milling-operation. They negotiated for two or three days and on September 12,1958 the-written proposal of Gallagher to sell the Gallagher properties at the option of Liberman was signed by Liberman who-put up a $10,000 money deposit, and Liberman thereby was granted an option to buy the Gallagher properties for $500,-000 with an additional sum for the Gallagher standing timber, subject to Gallagher’s then existing obligation to giveNagel the prior right of refusal to purchase the Gallagher properties which was. still in effect on September 12, 1958 and! was expressly so recognized by Liberman, in that proposal. Such prior right grew-out of an oral agreement between Gallagher and Nagel that if either Gallagher or Nagel decided to sell their respective-properties, the seller would first offer to-sell to the other before selling to anyone else. Six days after the aforesaid September 12th Gallagher-Liberman option was; granted, Liberman on September 18th, after learning from a Gallagher spokesman that Gallagher had called off the September 12th proposal, phoned from Albuquerque, New Mexico, to Mrs. Nagel in Winslow, Arizona, and arranged a conference for September 20th with Mrs. Nagel in Winslow regarding the Gallagher properties, out of which conference grew the option agreement here sued upon. By reason of his aforesaid experiences Liberman was well informed .as to all matters connected with the subjects of that conference. As of November, 1958 there were two sawmills at Winslow, — the Nagel mill which had operated continuously since November, 1942, and the Gallagher mill which had operated since 1950, was acquired by appellants in November 1958 .and is now known by their partnership name of Duke City Lumber Co., of which the partners are the brothers Maurice Liberman, Joseph Grevey and Jack Grevey. Those brothers and that partnership are the appellants here all of whom .at all times material were and are citizens of New Mexico. The conference in the Nagel office at Winslow, Arizona took place on Saturday, September 20, 1958, as arranged by Liberman in his September 18, 1958 long ■distance phone call from Albuquerque, New Mexico to Mrs. Nagel in Winslow. Present at that conference lasting several hours were Liberman, Mrs. Nagel ■and Bob Jenkins. The discussions concerned the acquisition of the Winslow sawmill business and related properties of Arizona Timber Company, also called the Gallagher Winslow Mill, and the Gallagher Properties. At an early stage of the conference Mrs. Nagel mentioned the Nagels’ desire to alone purchase the whole of those properties, but felt that such purchase would place too great a financial burden on the Nagel business. Then the discussions turned to Liberman’s suggestion that the Nagels give up their right of first refusal to purchase those properties and that the parties purchase the Gallagher properties together on a 50-50 basis. Their negotiations then included that Liberman proposal together with the related questions of joint operation of the business and available timber supply and of whether they could get along in business together, whether Liberman would approve Jenkins as manager of the Gallagher business if it were purchased by the Liberman and Nagel groups together, and whether Liberman would agree that owing to Nagel having money tied up in winter log deck, Nagel coúld have until April 30, 1959, until the spring thaw would permit the release of their winter log deck and of their capital tied up with it, to buy into the business, should Liberman purchase it. They reached agreement upon Liberman’s proposal and those questions and upon the manner in which the Nagels would notify Gallagher of the giving up of Nagels’ right of first refusal. The parties agreed that Liberman upon his return to Albuquerque would prepare a memorandum of that agreement, that appellee Jenkins would go to Albuquerque, sign the written document and then personally call upon Gallagher in Albuquerque and advise him of the Nagels’ giving up their right of first refusal, and The Trial Court found that Liberman prepared the written document dated September 23,1958, reading as follows: “September 23, 1958 “Mrs. George H. Nagel Nagel Lumber & Timber Company Winslow, Arizona “Dear Mrs. Nagel : “It is our understanding that you have a ‘first refusal agreement’ with Arizona Timber Company to buy out their Plant at Winslow; and, if you turn down this option it is our understanding that we are second in line to buy the Plant. “It is now mutually agreed that in case either of us (and by this is meant, the companies controlled by the Liberman Group as one party; and the Nagel Lumber and Timber Company or any company controlled by the Nagel Family as the second party) will take-up the proposition made by Arizona Timber Company and buy out the Winslow Plant from them, then our companies will have the option to participate in that purchase on a fifty-fifty basis at the same terms as the purchaser will get from the Arizona Timber Company. “This option remains in force until April 30, 1959, and will be automatically extended for six month periods unless cancelled by mutual consent. “Very truly yours, “Maurice Liberman “Maurice Liberman “Liberman Group “By: Maurice Liberman “Nagel Family “By: RobertT. Jenkins”. It was further found by the Trial Court that, from the conversations and negotiations on September 20, 1958 and from that September 23, 1958 document, the appellees understood when that document was executed by the parties, (and the appellants knew or had good reason to know), that appellees understood from such conversations, negotiations and document that the parties “had contracted and agreed that plaintiffs (appellees) would give up their aforesaid right of first refusal and would withdraw from further negotiations for the purchase of the Gallagher properties; that defendants (appellants) would then proceed to negotiate a purchase thereof; that in the event defendants purchased the Gallagher Properties, the plaintiffs would have an option until April 30, 1959 to purchase from defendants an undivided one-half interest in said Gallagher Properties by paying to defendants one-half of the purchase price paid or agreed to be paid by defendants to the Gallagher Companies, payable in the manner provided for in defendants’ agreement of purchase; that in the event plaintiffs exercised their said option the plaintiffs and defendants in addition to operating the business would share equally the obligation to provide any capital necessary therefor, as well as share equally the profits and losses of the business; and that defendants’ privately owned Aztec timber would be manufactured by plaintiffs and defendants in the newly acquired mill, under the terms and at the prices specified in the milling agreement (between defendants and the Gallagher interests) received in evidence as Exhibit 5.” (Parentheses added!) The Trial Court further found that when the document dated September 23, 1958 was executed “by plaintiffs (appellees) and defendants (appellants) the business enterprise herein referred to-as the Gallagher Properties was a going business earning and capable of earning substantial profits, which plaintiffs and defendants contemplated said business would continue to earn in the future”;, and that “On September 23, 1958, plaintiffs released the Gallagher Companies-from their first refusal agreement and withdrew from further negotiations with the Gallagher Companies for the purchase of the Gallagher Properties”. (Parentheses added.) Included also in the Trial Court’s findings were the following facts: That after protracted negotiations between MauriceLiberman and the owners of the Gallagher Properties an agreement for sale-of those properties was reached about 2:00 A.M. October 16, 1958, subject to final approval by both buyers and sellers at 11:00 A.M., same date; that thereafter on the same date in the early morning Mrs. Nagel received at Winslow a phone call from Liberman in New York requesting appellees to release appellants from the option agreement between them and to telegraph such release to him as soon as possible, but that Mrs. Nagel then told Liberman she did not think she would grant such release but would check with appellee Jenkins which she did; that at 8:29 A.M., same date, she wired Liberman stating “Do not wish to release options at this time”; that in a later phone call on same date, Liberman told Mrs. Nagel the sale price of the plant and timber but not that the sale was upon credit rather than cash; that he acknowledged receipt of her wire and asked her to come to New York which she told him she could not do; and that appellees did not again see or hear from appellants until mid-November, 1958. The Trial Court further found that “On October 17, 1958 a tentative draft •of the purchase and sale agreement between the Gallagher Companies and appellants” was signed, and “On November 6, 1958, defendants and the Gallagher Companies” executed a written contract of purchase and sale whereby appellants acquired the ownership of the Gallagher Properties; that in mid-November 1958, appellee Jenkins tried to arrange with Liberman for discussion of appellants’ purchase of the Gallagher Properties; but the latter suggested he would contact Jenkins in Winslow soon which Liberman on account of his illness did not do. The Court found that appellees asked on December 23, 1958 to see the November 6th sale and purchase contract for their use in deciding whether to exercise their option, but that request was refused by appellants; that “16. On January 6, 1959, plaintiffs (appellees) for the first time learned the terms of defendants’ (appellants’) aforesaid purchase, and on that day they advised defendants they elected to exercise their option to purchase said undivided one-half interest in the Gallagher Properties and offered to pay one-half of the purchase price. At the time of so electing the agreement of September 20, 1958 between plaintiffs and defendants was •still in full force and effect, the defendants had not been released from their ■obligations thereunder, and plaintiffs had ■done all things required of them by said agreement. Also, at the time of so electing, the plaintiffs were ready, able and willing to consummate the purchase of said one-half interest”; and that “17. Defendants refused and ever since have refused to allow plaintiffs to exercise such option and acquire said undivided one-half interest.” (Parentheses added.) From the foregoing findings, the Trial Court concluded that “2. Plaintiffs (appellees) and defendants (appellants) entered into a valid, lawful contract whereby the plaintiffs were granted an option until April 30,1959 to purchase from defendants an undivided one-half interest in the Gallagher Properties in the event of their acquisition by the defendants”; that “3. Plaintiffs fully performed their part of said agreement and on January 6, 1959 elected to purchase from defendants said undivided one-half interest in accordance with the aforesaid agreement”; and “4. Defendants breached the aforesaid agreement between plaintiffs and defendants by refusing to allow plaintiffs to exercise their aforesaid option”; that “5. Plaintiffs are entitled to recover from defendants, and each of them, as damages for breach of said contract, the present value of one-half of the net profits reasonably certain to have been derived from the operation of the Gallagher Properties by plaintiffs and defendants” in the sum of $429,883.40 wih 6% interest thereon per annum from June 30,1961, the date of the initial judgment, for which principal sum and interest final judgment was entered July 28, 1961. (Parentheses added.) The Court determined that if the parties had carried on pursuant to their agreement, the Gallagher Properties would have operated for 15 years during the years 1959 to 1973, inclusive, at a joint profit to the parties of $3.00 per 1000 board feet as to Duke City Aztec timber and of $4.71 per 1000 board feet as to Gallagher Aztec and Forest Service timber; that there would have been a net lumber recovery to the parties of 71.880.000 board feet from the Duke City Aztec from which the parties together would have at $3.00 per 1000 board feet made a profit of $215,640.00, of which appellees’ one-half share would have been $107,820.00; and that like operations would have as to Gallagher Aztec and Forest Service timber yielded to the parties a net lumber recovery of 194.685.000 board feet, from which the parties could reasonably anticipate a profit of $4.71 per 1000 board feet, total-ling a profit to the parties together of $916,966.35 of which appellees’ one-half share would have been ■ $458,483.18. Thus the Court found the aggregate sum of appellees’ anticipated $107,820.00 profits share respecting the Duke City Aztec timber and of their $458,483.18 anticipated profits share respecting the Gallagher Aztec and Forest Service timber to be $566,303.18, having at the rate of 4% the present value of $478,863.40. And since the Court found that appellees would have had to pay on the purchase price interest in the total sum of $48,-750.00 that sum was by the Court deducted from the total present value of appellees’ one-half share of future profits, leaving the final sum of $429,883.40 as the total principal sum of damages awarded to appellees against appellants. As to the $3.00 per 1000 board feet anticipated unit profit respecting the Duke City Aztec timber, the Court used that unit figure because “that, under the testimony, had been agreed upon between the parties for what they would be paid for milling this particular lumber”. Respecting the anticipated unit profit and related computations as to the Gallagher Aztec and Forest Service timber, the Court explained: “As to the $4.71 per 1000 board feet on the Gallagher Aztec and Forest Service timber, the Court felt that the comparable operation of the Nagels during the years 1952-59 was a sound basis for estimating probable future profits of the joint operations of plaintiffs and defendants, had the contract not been breached. However, the Court determined that the plaintiffs’ claimed figure for profit before depreciation, that is, $1,591,791.40 (Plaintiffs’ Exhibit No. 10), was too high and made the following deductions: (a) Deducted interest paid by Nagels in the 1952-59 period in the sum of approximately $72,000.00; (b) While some management expenses had been deducted in reaching the $1,591,791.40 figure, it was estimated that the management expenses of plaintiffs’ and defendants’ operations would be probably $5,000.00 per year higher and, accordingly, $40,000.00 should be deducted to make Nagel experience more nearly comparable; (e) (sic)1 The joint operation of plaintiffs and defendants would require working capital with the resulting interest cost thereon, and defendants’ estimate of $500,00.00 (obviously mistake, should be $500,000.00) at a 6% rate would require an additional deduction of $240,000.00 for the 8-year period covered in Plaintiffs’ Exhibit No. 10. (Parentheses added.) “The total of the deductions mentioned above, $352,000.00, taken from the $1,591,791.40 left $1,239,-791.40; and when this was divided by the Net Sales FBM of 140,956,-000, the operating profit before depreciation was $8.80 per 1000 board feet. “The Court found that the depreciation figure of $874,928.00 arrived at in Plaintiffs’ Exhibit No. 11 was sound, but since plaintiffs in Exhibit. 11 spread this depreciation over a. projected production of 266,565,000' feet, while the court found the total, projected production to be only 245,-348.000 feet, the Court could not accept plaintiffs’ figure of $3.28 per 1000 board feet. Spreading the depreciation of $874,928,000.00 over a production of 245,348,000 feet resulted in a figure of $3.57 per 1,000-board feet. “Deducting from the anticipated profit before depreciation of $8.80> per 1000 board feet, the depreciation of $3.57 per 1000 board feet left a probable net profit of $5.23 per 10001 board feet. However, since the calculation being made was of future profits and there is always uncertainty and chance in the future, the court determined to reduce the probable figure by 10% or 52c. The result was a finding of a profit to plaintiffs and defendants, had the contract not been breached, of $4.71 per 1.000 board feet on the Gallagher Aztec and Forest Service timber.” Although in some respects the testimony is sharply contradictory, the findings of fact are supported by ample and substantial evidence. This is true not only with regard to the making of the contract and its intended scope and meaning, but also as to its continued existence during the period in question; appellees’ release, on the strength of the option contract, of the Gallagher commitment to them; appellees’ refusal to release appellants from the option contract between appellees and appellants; the timely and sufficient exercise, by appellees, of their option under that option contract; appellants’ failure to honor such exercise of the option; and all facts and reasonable forecasts taken into consideration by the trial court in fixing damages, including those having to do with the future supply of timber. As before indicated the option agreement here sued upon was made at the September 20, 1958 conference at the Nagel mill office in Winslow. It was evidenced by a writing signed on behalf of the parties in the Liberman office in Albuquerque on September 23, 1958. That written form of it, however, was so abbreviated that, although it was legal in framework, much evidence was required and received to clear up what both sides and the Court realized were critical ambiguities and to explain the contract’s full and true meaning. The writing of September 23,1958 was signed by representatives of all the parties ; it expressed valid consideration and benefit moving from and to the optionors and from and to the optionees; the definite and valid time period during which the option could be exercised was from its date until April 30, 1959, with thereafter an indefinite and invalid option time extension which is of no moment here because the optionees, the appellees, completely performed or offered in good faith to perform all their obligations under the option contract before April 30, 1959. The case was carefully tried by able trial lawyers on both sides who after sufficient time following the trial filed briefs and finally submitted the case for decision. It obviously appears from the informal findings, the very detailed explanations made by the Court to counsel after post trial motions and the “Schedule Showing Computation by Court of Damages Sustained by Plaintiffs”, that all the proceedings, pre-trial and trial, were very understandingly and skillfully conducted. No case better than this demonstrates the wisdom of taking pre-trial depositions of important witnesses. Such depositions here undoubtedly furnished the basis for testing the accuracy and credibility of more than one of the witnesses. The Court observed the witnesses on the stand and heard their testimony. We cannot say that any finding of the Trial Court was clearly erroneous, and giving due regard “to the opportunity of the trial court to judge of the credibility of the witnesses,” we affirm the ruling of the Trial Court that the option contract was valid and was improperly breached by appellants, and we reject appellants’ error assignments (1) and (2). In so ruling we are not unmindful of appellants’ contention that at most the contract was an embryo agreement with many necessary provisions not clearly expressed, and that the contract embracing more terms than those expressed was whatever its nature void under the Statute of Frauds. Arizona Rev.Stat. § 44-101(6). But we think that there is in this instrument a sufficient express statement of essential terms to withstand this challenge. The terms which are not expressly stated, such as those relating to the day-to-day management of timber and sawmill operations, are, by the reasonable intendment of the contracting parties, such as will comport with the usual methods of operations normally employed in the local timbering and sawmill industry and are well known to the parties. As to the applicability of the Statute of Frauds, supra, and if it may be argued that the option contract arose above oral statement, the rule is that where one party to a contract has acted to his detriment, as did appellees in giving up their right of first refusal, solely in reliance upon what is contended to be an oral agreement, an estoppel may be raised to defeat the defense of the fraud statute. Waugh v. Lennard, 69 Ariz. 214, 211 P.2d 806. The option contract was valid, appellants were not released from it and it was in effect when appellees exercised their option. The Gallagher business, no less than the mill and the timber, was an integral part of the properties to be purchased, and the position of that milling business in the forest with its prospective future timber availability was an integral part of the Gallagher Properties, for the integrated whole of which both appellees and appellants had negotiated before and at the time of making the September 20 option agreement, and for which integrated whole the appellants negotiated when the November 6, 1958 purchase and sale contract was in the making. Appellants object to the failure of the Trial Court expressly to rule upon their contention that appellees’ failure to sign the additional letter agreement prepared by Liberman on September 24, 1958, produced a situation where the appellees must be held to have accepted only part of appellants’ over-all offer. This letter purports to give appellees an option to buy the Gallagher properties from appellants seven years after appellants buy that property, assuming appellants do buy it. It would have been helpful if there had been specific findings of fact and conclusions of law dealing with this matter. But the other findings and conclusions sufficiently reveal that the Trial Court believed that appellees already had that option by reason of the September 20 oral agreement and the September 23 letter. So viewed, the September 24 letter was a desirable but unnecessary statement of how appellants construed the previous agreement, with nothing to be gained or lost by having appellees sign the same. • Appellants contend the facts of this ease fall within the rule of Joseph v. Donover Company, 9 Cir., 261 F.2d 812, but we think not, because as to familiarity with the subject matter of the contract the parties had been dealing for years with similar subjects in the same area in question here. In determining its award to appellees for their damages, and after finding that the contract sued upon was an option to purchase an undivided one-half interest in a going business whose future profits were within the parties’ contemplation and were a direct immediate inducement to the contract, the Trial Court, applying the rule of Martin v. La Fon, 55 Ariz. 196, 100 P.2d 182, gave judgment to appellees in the sum of $429,883.40 with interest, for the present value of one-half of the anticipated profits of the business for the 15-year period from 1959 through 1973, which the Court held was a reasonable period in view of the operational capacity of the business in question and in view of the other evidence relating to the available future timber supply for the Duke City mill in particular. From the evidence as to future available timber and the explanations by the Court as to how the unit profit figures of $3.00 per 1000 board feet for the Duke City Aztec timber and $4.71 per 1000 board feet for the Gallagher Aztec and Forest Service timber were ascertained, it can readily be seen that the Court’s determination of unit profit figures, future available timber and length of time during which lost future profits may reasonably be recovered, although involving some uncertainty, was not the result of-mere guess work, but was supported by credible testimony and just accounting principles establishing a sound basis for the Court’s action. In the La Fon case, supra, the Arizona Supreme Court held: “ * * * The real subject of the option was a going hotel and restaurant business, which had been operated by defendant for about a year and a half, and previously had been operated by plaintiff for some two years. The physical property covered by the lease was practically useless except for the purpose of running the business. It is apparent to us the record shows the parties must have known the only reason why plaintiff desired the assignment of the lease was so he could continue the operation of that particular business on that particular site, for the purpose of making a profit by its operation, and considered that as the inducement for the option. On this state of the record, we think the trial court erred in striking from the complaint the allegations of special damages by a loss of future profits. * * * ” We think that the above stated rule of the La Fon ease is the correct rule applicable to this case, and that the Trial Court correctly applied that rule here. The Court’s method of computing the damages is set out in the explanations made by the Court, but, more briefly stated, it was determined from credible evidence of experts that lumber produced by the Duke City mill will have a profitable market through 1973, that during that period sufficient timber will be available to yield a net lumber recovery of 266,565,000 board feet, of which 71,880,-000 board feet of Duke City Aztec would have made a profit of $3.00 per 1000 board feet and 194,685,000 board feet of Gallagher Aztec and Forest Service timber would have made a profit of $4.71 per 1000 board feet, that part of those profits would have been realized each year of the period, and that, after deducting from the present value of Nagels’ one-half of those future profits the present value of the interest Nagel would have had to pay on the purchase price if permitted to purchase the optioned undivided one-half interest, Nagels’ net damages for loss of one-half the future profits is as above stated $429,883.40. As to such future profits experts may testify. McCormick on Damages, page 109, § 29; Connecticut Ry. & Lighting Co. v. Palmer, 109 F.2d 568 (aff. 311 U.S. 544, 61 S.Ct. 379, 85 L.Ed. 336), ruling at page 571 that: “In cases where recovery of prospective damages on breach of contract is demanded, the plaintiff is not called on to prove to a dead certainty that he will suffer a loss from the defendant’s wrong. Reasonable expectations of loss is all that can generally be proved. Williston on Contracts (Rev.Ed.), section 1346.” We think in all things related to the determination of appellees’ damages, including the kind, amount and method of determination, the Trial Court committed no error and that all of appellants’ assigned errors in that connection are not well taken and they are rejected. The judgment of the Trial Court is in all respects affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_trialpro	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 procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Ralph Calvin BOWMAN, Appellant, v. UNITED STATES of America, Appellee. No. 5262. Circuit Court of Appeals, Fourth Circuit. Oct. 5, 1944. Julien Cornell, of New York City (Byron Haworth, of High Point, N. C., on the brief), for appellant. Frank S. Tavenner, Jr., U. S. Atty., of Woodstock, Va. (Tom C. Clark, Asst. Atty. Gen., N. T. Elliff, Sp. Asst. to Atty. Gen., and Howard C. Gilmer, Jr., Asst. U. S. Atty., of Pulaski, Va., on the brief), for appellee. Before SOPER, DOBIE, and NORTHCOTT, Circuit Judges. PER CURIAM. The judgment in this case is affirmed on the authority of Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346. Affirmed. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_district	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 208, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, and Local 123, Furniture Workers, Upholsterers & Woodworkers Union, Respondents. No. 17010. United States Court of Appeals Ninth Circuit. June 14, 1961. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, William J. Avrutis and Allison W. Brown, Jr., Washington, D. C., for petitioner. Margolis & McTernan, Lewis Garrett & Lionel Richman, Los Angeles,, Cal., for respondents. Before BARNES, HAMLIN and JERTBERG, Circuit Judges. HAMLIN, Circuit Judge. This case is before this court on the petition of the National Labor Relations Board for the enforcement of its order issued against respondents on the ground that they committed an unfair labor practice in violation of 29 U.S.C.A. § 158(b) (2). It is conceded that respondents picketed Sierra Furniture Company, hereinafter Sierra, commencing on September 24, 1958, and that the picketing continued until February 6, 1959. The sole issues before this court are: 1. Did the respondents represent a majority of the employees of Sierra at the time of such picketing? 2. If they did not, did respondents by their picketing seek to coerce Sierra into executing a union-shop contract with them? The Board found against respondents on both of these issues, determining that they did not represent a majority of the employees during such picketing and that they did seek to coerce Sierra into executing a union-shop contract. The record shows that in July of 1958 Local 123, Furniture Workers, Upholsterers and Woodworkers Union, hereinafter 123, was attempting to organize Sierra’s plant. On July 16th Gus O. Brown, 123’s business agent, wrote Sierra claiming that 123 had a majority of the company’s workers and asking for collective bargaining recognition. However, at this time 123 represented only 28 of the 60 Sierra employees. The organizational efforts continued, and by July 21st 33 employees had signed cards for 123. Brown again called Sierra, but this time stated “that we were making the demand on behalf of the Local 123 and Local 208 jointly.” On July 22nd Brown wrote a letter to the same effect. Sierra refused to recognize the two unions jointly. The union cards signed by the workers stated only that they authorized 123 to bargain for them; there was nothing on the cards to indicate that the employees also were willing to be represented by 208. On July 22nd Sierra was struck and picketed by the respondents acting jointly, but less than a majority of Sierra employees engaged in the strike and picketing. On July 31st 123 advised Sierra in writing that it disclaimed “any and all interest in representing the employees of the Sierra Furniture Company.” On or about the same date 208 advised Sierra of 123’s disclaimer and asserted its own individual claim of representation. On August 6th Sierra executed a contract with 208, which contract included a union-shop agreement. The picketing stopped. On August 25th an employee of Sierra filed charges against Sierra and 208, alleging in substance that Sierra and 208 had violated the National Labor Relations Act by executing a union-shop contract at a time when 208 did not represent a majority of Sierra employees. On September 3rd Sierra notified 208 that because an investigation by Board agents showed that 208 did not represent a majority of Sierra employees, it was Sierra’s position “that the agreement of August 6, 1958, is completely invalidated, both the purpose and consideration therefor having been illegal.” The trial examiner found that on September 3rd Sierra “broke off recognition of Local 208 and at no time thereafter recognized the Respondents either jointly or individually as the bargaining representative of its employees.” On September 3rd 123 notified Sierra that it was withdrawing its “disclaimer” of July 31st. Thereafter various charges were filed with the Board by 123 and 208, a discussion of which is not necessary to this decision. On- September 22nd 208 by letter demanded that Sierra meet with the respondents “(1)' to ascertain and definitely fix the position of Sierra Furniture with respect to the above captioned agreement [August 6 contract] to the end that full compliance therewith may be had (Local 208 does, of course, insist that the labor contract in question is wholly valid and enforceable), and (2) to negotiate another and different bargaining agreement if such be necessary and desirable in the premises.” When the deadline of 5 p. m., Tuesday, September 23, which was set out in the letter, was not met by Sierra, respondents jointly on September 24th began picketing the Sierra plant. The picket signs that were displayed bore the names of both 123 and 208 and said in substance that Sierra was unfair to organized labor. Representatives of the parties met on September 25th without agreement, and the picketing by respondents continued. Apparently there were no further meetings between the parties until January 6, 1959. The picketing by respondents stopped on February 6th, when a temporary restraining order was obtained by Sierra. Respondents then advised Sierra by telegram that the strike had been terminated and requested the reemployment of the strikers. In January, 1959, respondents had distributed pamphlets and displayed signs at places where customers and potential customers of Sierra were assembled, appealing to said persons not to patronize .Sierra while the strike was in progress. On January 20, 1959, the acting regional director of the Board, upon the charges of unfair labor practices theretofore filed by Sierra against respondents, issued a complaint and set the hearing for February 16, 1959. An amendment to this complaint was filed on January 26, 1959. We shall first consider the question of whether respondents represented a majority of Sierra’s employees at the time of the picketing. It is conceded that on July 16, 1958, less than a majority of Sierra employees had signed cards authorizing 123 to represent them and that at that time none of the employees had signed cards authorizing 208 to represent them. On July 21st 33 employees or more than a majority had signed cards authorizing 123 to represent them; but by that time 123 had changed its position, and on that day and the following day 123 both orally and in writing notified Sierra that 208 and 123 were jointly requesting recognition on behalf of all maintenance and production workers. There is no evidence that at that time the Sierra employees who had signed cards to be represented by 123 had any desire whatever to be represented by 208. The Sierra Company refused to bargain with 123 and 208 jointly, and the Board found “that the refusal, if any, was a refusal to bargain with the Locals acting jointly [Footnote omitted].” The respondents attempted to show that there was a joint organizational drive on the part of 123 and 208, and that by signing cards for 123 the employees were actually designating 123 and 208 together. In considering the testimony on this point the trial examiner aptly observed: It is possible that earlier than July 21, 123 was supported by 208 in its organizational drive but if 208 were actually seeking joint representation with 123 in the earlier period of 123’s efforts, obviously, I think, Sierra employees would not have been solicited to sign only 123’s authorization cards, and Brown’s recognition demand of July 16 or 17 would have specifically spelled out the fact that joint recognition was being sought. Had this been done there would have been, and could have been, no occasion for his letter to Feldman dated July 22. Also the evidence does not show that 123 or 208 either separately or jointly represented a majority of Sierra employees on September 24th or at any time later during the strike. A majority had not signed cards for either union, and a substantial majority continued to work throughout the strike. We hold that the evidence does not support the claim of the respondents. We shall next consider the finding of the Board that respondents by their picketing sought to coerce Sierra to execute a union-shop contract with them. It must be remembered that the contract of August 6, 1958, between Sierra and 208 contained a union-shop agreernent. In the letter of September 22nd written by 208 to Sierra, 208 demanded that “full compliance therewith may be had,” referring to the August 6th agreement. There was, as the Board pointed out in its decision, uncontroverted testimony that on September 25th, when the parties met after the strike had been called, “Respondents stated that they could not give up union-security.” More than three months elapsed during which respondents did not make any statement of a change in their position. At one meeting in January, 1959, the respondents expressed willingness to extend the 30-day union-security clauses in the contract to 90 days. Sierra’s attorney testified that the dropping of the union-security demands was conditioned on Sierra’s discontinuing its various actions against them, particularly as affecting a proceeding then pending in which Sierra was seeking an injunction against the unions. In its decision the Board based its finding of a § 158(b) (2) violation on— “1) the Respondents’ statement at the September 24th meeting that they could not give up union-security ; 2) their picketing of the Company for in excess of 3 months without any indication of a shift from that position which, under such circumstances, must be presumed to have persisted; and 3) their failure to indicate until January 6 that they would negotiate the matter and might modify their union-security demands. “We are persuaded by such facts and sequence of events and by Brown’s statements in the courthouse of January 30 that the Respondents, by their picketing, sought to coerce Sierra into executing a union-shop contract. By so doing, while representing only a minority of Sierra’s employees, they violated Section 8(b) (2) of the Act.” Section 158(b) (2) provides that it is an unfair labor practice for a labor organization “to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) * * * ” In N. L. R. B. v. International Union of Operating Engineers, 9 Cir., 1956, 237 F.2d 670, 673, this court said: “[A] literal reading of the section requires only a showing that the union caused or attempted to cause the employer to engage in conduct which, if committed, would violate § 158(a) (3).” By Section 158(a) (3) (i) the employer is forbidden to enter into a union-shop contract with a labor organization unless such labor organization “is the representative of the employees as provided in Section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made.” In the instant case neither 123 nor 208 qualified as the representatives of Sierra’s employees, and by strike action and picketing they were attempting to cause Sierra “to discriminate” against its employees. This was therefore a violation of § 158(b) (2) as found by the Board. We find that upon the whole record there is substantial evidence to support the finding and order of the Board as to the violation of 29 U.S.C.A. § 158(b) (2). Let so much of the Board’s order as is based upon respondent’s violation of Section 158(b) (2) be enforced. . “(b) It shall be an unfair labor practise for a labor organization or its agents— * * * * * “(2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership * * 29 U.S.C.A. § 158(a) “It shall be an unfair labor practice for an employer— “(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not established, maintained, or assisted by any action defined in this subsection as an unfair labor practice) to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made and has at the time the agreement was made or within the preceding twelve months received from the Board a notice of compliance with section 159(f), (g), (h) of this title * * 29 U.S.O.A. § 159(a) “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining * • . Local 208, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,' — hereinafter in this opinion referred to as 208. . The body of the letter reads as follows: This will confirm the telephone conversation made to you yesterday, wherein I advised you that we have revised our request for recognition to the above-named Company, in that the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 208, and our Local, are jointly requesting recognition on behalf of all maintenance and production workers excluding office employees, salesmen, guards and supervisors. . “September 22, 1958 “Sierra Furniture Company “330 West Avenue 26 “Los Angeles, California “Re: August 6, 1958 labor contract between “Sierra Furniture and Teamsters’ Local 208 “Attention: R. Lewis “Gentlemen: “Teamster’s Local 208 and Furniture Workers Local 123 hereby respectfully demand that Sierra Furniture immediately meet for purposes of collective bargaining with representatives of these Locals for the following purposes, to wit: “1) to ascertain and definitely fix the position of Sierra Furniture with respect to the above captioned agreement to the end that full compliance therewith may be had (Local 208 does, of course, insist that the labor contract in question is wholly valid and enforceable), and “2) to negotiate another and different bargaining agreement if such be necessary and desirable in the promises. Please take notice that Local 208 will resort to economic sanctions against Sierra Furniture on or after Sep. 24, 1958 in event Sierra Furniture fails to meet with us as above requested prior to 5:00 P.M. Tuesday, September 23, 1958. Despite our position that the August 6, 1958 contract is valid and enforceable and that we are entitled to full compliance therewith, the purpose of the economic sanctions, if such become necessary, will not be to enforce the August 6, 1958 labor contract in question. What we do insist upon, however, is that the Company immediately meet and negotiate with us either concerning the matter of enforcement of the August 6th contract or to negotiate a new contract in its place and stead. The object of the imposition of economic sanctions, if such become necessary, will be to insure that necessary bargaining takes place in the premises. We stand ready to meet with Sierra Furniture representatives at any time prior to 5 :00 P.M. on Tuesday, September 23, 1958 and at any reasonable place on said date. “Yours truly, “Local Freight Drivers Union, “Local 208 “/s/ JOHN W. FILIPOFF, “Secretary-Treasurer “ JWF :F :DR “cc Furniture Workers, Local 123” . There were at this time 78 employees on the Sierra payroll, and 50 of them continued to work in spite of the picket line. . Reybock Lewis, president of Sierra, testified that at that meeting Brown had stated “he thought that if we could make a statement to our employees that we had no objections to them joining 208 or 123, or any other union, that, and he said, although he didn’t have a majority at that time, that he felt in a couple of days that with that cooperation he could have a majority.” . See footnote 3. . See footnote 5. . The Board also found that the picketing was coercive and in violation of 29 U.S.C.A. § 158(b) (1) (A), and its order provided remedy accordingly. However, in view of the recent decision of the Supreme Court in N. L. R. B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639, 1960, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710, holding that picketing for recognition by a minority union is not violative of the Act, the Board does not seek enforcement of such portions of its order as are based upon its finding of a violation of that section. 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_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. Warren G. SCHWARTZ, Trustee, (by substitution) Respondent, Appellant, v. J. R. CIANCHETTE & SONS CORP., et al., Appellees. No. 6159. United States Court of Appeals First Circuit. Heard May 4, 1966. Decided June 28, 1966. Julius Zizmor, New York City, with whom Schwartz & Duberstein, Brooklyn, N. Y., was on brief, for appellant. Frederick G. Fisher, Jr., Boston, Mass., with whom Carl Hirsch and Hale & Dorr, Boston, Mass., were on brief, for appel-lees. Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. This appeal stems from the failure of one Joseph Halpern to complete the purchase of certain business property located in Bangor and Glenburn, Maine, which he agreed to buy from the appellees, J. R. Cianchette & Sons Corp. and Joseph R. Cianchette, debtors in possession under a Chapter XI arrangement. Three properties are involved in the sale — two in Bangor known as the Union Street and the North Bangor sites, and a third in Glenburn. The total purchase price is $85,000 of which the buyer made a down payment of $8500. The sellers’ business affairs being under the supervision of the Bankruptcy Court, the sale required the approval and confirmation of the referee in bankruptcy, which the sellers promptly obtained. Shortly thereafter, the buyer refused to complete his purchase and the sellers brought a petition in the Bankruptcy Court to compel him to do so. The buyer countered with a cross petition for the return of his deposit and for reimbursement of certain expenses paid by him for abstracts of title to the real estate involved in the sale. In the nearly three years that followed, four hearings were held by the referee in bankruptcy and his findings of fact in each of these hearings were reviewed and affirmed by the district court. From each of the four orders entered by the district court affirming the referee’s findings the buyer appeals. At the initial hearing the buyer’s basic contention was that he is relieved of his obligation to complete the purchase (1) because he is being called upon to accept substantially less acreage in the Union Street site than the sellers had agreed to convey, and (2) that on the date the sale was confirmed the seller was not in a position to deliver good and merchantable title. The acreage issue raises substantial questions of fact and law which were discussed by the referee at some length. The buyer relies principally upon a clause in his offer which refers to the Union Street site as “consisting of 70 acres more or less.” It appears that the entire Union Street site consists of some sixty-six acres including thirteen house lots with an area of about one acre each. The remaining portion is industrial property which had been used by the sellers in connection with their former business. Located thereon is a stone quarry, a stone crusher and some accessory buildings. This industrial portion contains about fifty-three acres. The sellers contend that this is the only portion of the site involved in the sale. The buyer claims he is entitled under his contract to sixty-six acres. The following evidence was adduced on this issue. On July 3, 1961, some fifteen days before the buyer made his offer, he, an attorney for the sellers, and a consulting geologist made an inspection of the Union Street property. The geologist pointed out the boundaries of the industrial portion. The attorney stated he was uncertain of the exact acreage but gave the buyer two deeds covering the entire site which the sellers had received when they bought this property. The buyer was aware of the total acreage recited in these two deeds and took them with him to read leisurely that evening. While at the site the attorney for the sellers told the buyer that the house lots were not included in the sale. A few days later, but still well before the time the buyer submitted his offer, one of the sellers gave him a detailed map of the Union Street property on which he pointed out the boundaries of the industrial portion of the property. On the basis of this evidence the referee found that under the circumstances any disparity in acreage in the Union Street property was of no material consequence; that there was not the slightest evidence of any misrepresentation of the acreage by the sellers and any mistake with reference to it was entirely the fault of the buyer. In support of his contention of unmer-chantability, the buyer alleged certain in-sufficiencies of title and numerous specific deficiencies in the conduct and confirmation of the sale. The referee rejected the claim of insufficiency of title and made a seriatim disposition of the objections raised to the sale as trifling and inconsequential. He also made an overall finding applicable to both issues that the dealings of the parties constituted a judicial sale, the finality of which he would not disturb in the absence of substantial grounds. Thereupon the referee denied the buyer’s motion for refund of his deposit, allowed him reimbursement of his title expenses in an amount to be determined, and ordered the buyer to complete his purchase. On review, the district court affirmed the referee’s findings but ruled that under his agreement the buyer is entitled to take these properties free and clear of any encumbrances that would render them un-merchantable and recommitted the case to the referee for such a finding. This necessitated the second hearing. At this hearing the sellers produced evidence that the title to each of the properties involved was good and merchantable as of the date the sale was confirmed. The buyer offered no evidence. The referee found that the sellers “are now in a position as indeed they have been at all relevant times in the past, to convey a good and merchantable title to these premises.” In this second hearing the referee also took occasion to reaffirm his previous findings, again ordered the buyer to complete his purchase and in the event he failed to do so, authorized the sellers to resell the property for the buyer’s account and hold him liable for any resulting deficiency. More than two years having passed since the sale was confirmed and the buyer still not having completed his purchase, the sellers succeeded in obtaining another purchaser for part of the property and petitioned the referee to confirm the resale. While this was pending it was discovered that the sellers’ lease to the Braley Pit which was involved in the resale, had never been recorded and that the fee in the property bad since been sold to a bona fide purchaser who recorded his deed apparently without actual notice of the lease. Neither party had any previous knowledge of this defect and it was the first time it had been called to the attention of the referee. The case, which was then pending in this court, was promptly remanded to the district court and from there was again sent to the referee for a determination of title. At this hearing the original buyer strongly urged that the previous orders directing him to complete his purchase be vacated since it was clear that the sellers had no title to a material portion of the properties when the sale was confirmed. The sellers testified that when this defect became known to them they cured it promptly by purchasing the fee. The referee found that this made the title fully marketable; that time not being of the essence of the agreement, once the defect was discovered the sellers were entitled to a reasonable opportunity to cure it as long as this did not result in any hardship to the purchaser; that since the original purchaser had long ago decided not to complete his purchase, this belated action was not harmful or prejudicial to him. Shortly thereafter, this matter came before the referee and the district court for the fourth time — -this time on the sellers’ amended petition for confirmation of the resale, which was granted. It is well settled that the district court is bound by the referee’s findings of fact unless they are clearly erroneous and this court, in considering the district court’s findings of fact, is bound by the same rule. Brown v. Freedman, 125 F.2d 151, 154 (1st Cir. 1942). We have reviewed the findings of fact made by the referee and the district court and we cannot say they are clearly erroneous. The finding that only the industrial portion of the Union Street site was involved in the sale is certainly supported by substantial evidence. The buyer knew or should have known that only the industrial portion was included. He was so informed the day he viewed the property. The boundaries were visibly pointed out to him that day and were shown to him on a map a few days later. This finding is further buttressed by the fact that the buyer had intended to use the property for the same general purposes for which the sellers had used it and that most of the house lots had already been sold and the sales confirmed by the bankruptcy court. There is absolutely no evidence of any fraud or misrepresentation of any kind having been practiced by the sellers and there is ample evidentiary basis for finding that any mistake with reference to the acreage was unilateral and not the fault of the sellers. Such mistake does not excuse the buyer from performance. Staley v. Dwyer, 29 F.2d 982, 984 (8th Cir. 1928); Bibber v. Carville, 101 Me. 59, 63 A. 303 (1905). Also there is sufficient evidence to support the findings of the referee and the district court that the numerous title and other objections raised by the buyer were untimely, were also without merit and that the title to these properties is fully marketable. In fact the district court properly characterized most of the buyer’s objections as “patently specious.” From a review of all the evidence it is clear that the buyer’s repudiation of his contract was for reasons wholly unrelated to the quality of the title and as pointed out by the district court, there was ample evidence to support such a finding. To be sure, the referee’s finding of merchantability made in the second hearing turned out to be erroneous with reference to the Braley Pit, but this finding was made solely upon the basis of the evidence presented. It should be noted, however, that this defect was not known or discovered by the buyer or relied upon by him as a ground for repudiation of the sale. When it came to the attention of the sellers, they cured it promptly and no hardship or prejudice to the buyer resulted. His attempt to use it now as a device to avoid his agreement does not impress us. Higgins v. Eagleton, 155 N.Y. 466, 50 N.E. 287 (1898). See 3A Corbin on Contracts (1960) § 762. Moreover, he had repudiated his contract long before he learned of this defect. A buyer who intends to assert such defects as grounds for repudiation of an agreement of sale must bring them to the attention of the seller so that he may have a reasonable opportunity to cure them. 3 American Law of Property § 11.51 (Casner Ed. 1952). This was not done here. From our appraisal of the sellers’ conduct in this case we are satisfied that if the buyer had given them timely notice of the title objections which he later asserted in these proceedings, the sellers would have promptly cured them. Where a seller has not been at fault and time is not of the essence of the agreement, he has the right to clear defects and perfect title during the specific performance proceedings as long as this does not result in hardship or prejudice to the buyer. 3 American Law of Property § 11.51 (Casner Ed. 1952); Pomeroy, Specific Performance of Contracts, § 421 (3d Ed. 1926). Both the referee and the district court found that the sellers were not at fault here; that time was not of the essence of this transaction and that since the buyer had long ago elected not to complete his purchase for reasons unrelated to the objections he asserted, he was not harmed or prejudiced by the belated curing of this title defect in the Braley Pit property. These findings are not clearly erroneous. There was ample evidence to support them. In fact the buyer’s unwarranted attempt to escape his contractual obligation seemed to permeate the whole ease. Finally, it must be remembered that the sale with which we are concerned in this ease is a judicial sale. In re United Toledo Co., 152 F.2d 210, 211 (6th Cir. 1945) ; In re Hollingsworth & Whitney Co., 242 F. 753, 756 (1st Cir. 1917) ; In re California Eastern Airways, 95 F. Supp. 348, 351 D.C.Del. 1951). The parties are acting under the supervision of the bankruptcy court. It cannot be denied that the buyer knew this. Judicial sales are not governed by the ordinary rules pertaining to private sales of real and personal property. It has long been established that they enjoy a certain favor in the law and every reasonable intendment must be made in favor of their validity. Cox v. Hart, 145 U.S. 376, 12 S.Ct. 962, 36 L.Ed. 741 (1892). In the absence of substantial grounds, we are reluctant to disturb the finality of a judicial sale. Currin v. Nourse et al, 66 F.2d 137, 140 (8th Cir. 1933); In re Hoffman et al, 16 F.2d 939, 940 (D.C.E.D. Pa. 1927). We find no such substantial grounds here. Affirmed. . Halpern was the original respondent-appellant but having gone into bankruptcy during the pendency of these proceedings, Warren <5. Schwartz, his trustee in bankruptcy, was substituted as appellant. . The offer was made on July 18, 1961, accepted in writing on July 25 and the sale was confirmed by the referee on August 11,1961. . During the six weeks period between the date of his offer, and early in September when he repudiated the sale, the buyer had the keys to some of the buildings, readied some of them for use, made minor repairs and acted generally, as though he were the owner. . The agreement of sale required the sellers to furnish these abstracts which they did not do and the buyer obtained them at his own expense. . These four appeals have been consolidated and are being heard together by order of this court. . The order confirming the sale contains the same language. . Prior to the Chapter XI proceeding, the sellers were in the highway and airport construction business and used this portion of the Union Street site and the other properties involved in this case in connection with their business. The North Bangor 'site which is under lease to the sellers for an indefinte period, contains about three acres. On it is a railroad siding, accessory buildings and some stockpiled materials. At G-lenburn the sellers have a twelve acre tract known as the B & A Pit on which there are sand and gravel deposits. They also have a leasehold interest in other property in the same vicinity called the Braley Pit which contains similar deposits and is included in the sale. There is evidence that the buyer intended to use these properties for the same general purposes as the sellers had used them. . The deeds showed a total acreage of 66.12 acres in the entire site. One deed recited 46.75 acres — the other 19.37 acres. In addition, both had metes and bounds descriptions of the parcels conveyed. . In fact most of these house lots had already been sold and the sales confirmed by the bankruptcy court. Also it should be noted that these lots were under the control of the liquidating agents and the debtors in possession had no authority to sell them. . Amongst others, the buyer raised the following objections to the sale which were dismissed by the referee: (a) that the sellers had only thirty days to close the sale and did not do so within that period; (b) that the sellers did not pre-pay the rent or prorate taxes as agreed; (e) that the sellers did not obtain a written consent from the lessor relative to lease rights enjoyed by the sellers; (d) failure of sellers to furnish abstracts of title as agreed; (e) technical defects in referee’s confirmation of the sale and (f) the sale did not comply with the Statute of Frauds in that it lacked a sufficient memorandum in writing. . In addition to other evidence, a title expert testified that with two possible exceptions, no liens or encumbrances rendering the title unmerchantable existed against these properties as of September 15, 1961. It appeared that these two possible liens had been discharged but in any event they were susceptible of money satisfaction and could have been paid out of the proceeds of the sale on the day of the closing. . The referee also provided that within thirty days of the completion of the resale, the sellers are authorized to make application for an award of damages against the respondent in such amount as the bankruptcy court shall determine just and proper. The buyer did not obtain a stay of this order. . He also contended that in view of the pending resale it was futile to compel him to complete the purchase and in addition, that this case had now become an action for damages for breach of contract. See fn. 12. . And introduced in evidence a deed dated January 6, 1964, showing a conveyance to them of the fee in the Braley Pit by the then record owner of this property. . We are not impressed with the buyer’s argument that this title defect was cured solely for the beneft of the new purchaser and not for him or by his contention that he should be relieved of his obligation to purchase because the properties had deteriorated and depreciated in value due to the delay caused, by this litigation. Much of this delay was caused by the dilatory tactics of the buyer. . See Berry v. Berry, 288 Ky. 239, 156 S.W.2d 123 (1941); Landers v. Scroggy, 294 Ky. 848, 172 S.W.2d 557 (1943). . No title objections of any kind were raised by the buyer in September of 1961 when he first indicated his intention to repudiate the sale or in his answer to the sellers’ petition to compel him to complete the purchase. At the confirmation hearing before the referee, buyer’s son was present and he raised no objections of any kind. . And approved by the district court. . It cannot be expected that the referee had any obligation to make an independent title examination of these properties. . The district court found that all defects of which the buyer complained in the first bearing were cleared before tbe end of tbe second bearing. 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_numresp	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. 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. STEVERSON v. CLARK et al. No. 4112. Circuit Court of Appeals. Fourth Circuit. Nov. 17, 1936. S. P. Knotts, Jr., of Columbia, S. C., for appellant. M. E. Zeigler, of Orangeburg, S. G, for appellees. Before PARKER and SOPER, Circuit Judges, and CHESNUT, District Judge. Writ of certiorari denied 57 S. Ct. 508, 81 L. Ed. —. PER CURIAM. This is an appeal from an order refusing to adjudicate appellant a bankrupt under subsection (s) of section 75 of the Bankruptcy Act, as amended by the second Frazier-Lemke Act (Act Aug. 28, 1935, § 6 [11 U.S.C.A. § 203 (s). The judge below approved findings by the Conciliation Commissioner to the effect that an offer of composition and extension had not been made in good faith by the bankrupt; and he accordingly refused an adjudication of bankruptcy and dismissed the proceedings on that ground. For that reason, he found it unnecessary to pass upon the constitutional validity of the second Frazier-Lemke Act, although this was duly challenged in appellees’ motion to dismiss. We find nothing in the record which would justify us in disturbing the order of the District Judge approving the findings of the Conciliation Commissioner, and we agree that these afford sufficient ground for denying the adjudication and dismissing the proceedings. In re Borgelt (C.C.A.7th) 79 F.(2d) 929. In addition to this, we have recently held that the second Frazier-Lemke Act is void because violative of the Fifth Amendment to the Constitution. Robert Page Wright, Bankrupt, v. Vinton Branch of Mountain Trust Bank and five other cases (C.C.A. 4th) 85 F.(2d) 973. In any aspect of the case, therefore, the judge below properly denied the adjudication and dismissed-, the petition. The order appealed from will accordingly be affirmed. Affirmed. Question: What is the total number of respondents in the case? Answer with a number. Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations SALEM v. UNITED STATES LINES CO. No. 283. Argued March 19, 1962. Decided May 28, 1962. Robert Klonsky argued the cause for petitioner. With him on the briefs was Philip F. Di Costanzo. Walter X. Connor argued the cause and filed briefs for respondent. Mr. Justice Brennan delivered the opinion of the Court. The first question to be decided in this seaman’s personal injury suit for damages on the grounds of unseaworthiness and negligence under the Jones Act is whether the jury should have been allowed to determine, in the absence of supporting testimony by an expert in naval architecture, a claim that the shipowner failed to equip his ship with necessary and feasible safety devices to prevent the mishap which befell the seaman. The trial judge submitted for the jury’s determination various bases of respondent’s alleged liability, including the claim resting on the failure to provide certain safety-devices. Because the jury returned a general verdict for the seaman, it cannot be said what basis of liability the jury found to exist. The Court of Appeals for the Second Circuit, Judge Smith dissenting, reversed and remanded for a new trial, holding that in the absence of expert evidence, it was error to have allowed the jury to consider the failure to provide safety devices. 293 F. 2d 121, 123-124. Since the question whether supporting expert testimony is needed is important in litigation of this type, we granted certiorari. 368 U. S. 811. We hold that the Court of Appeals erred. Petitioner was a lookout on the S. S. United States. He was injured as he moved from a ladder to a platform leading to his post in the crow’s-nest. The crow’s-nest was housed in a “bubble" half way up a hollow aluminum radar tower which rose 65 feet from the bridge deck. The ladder extended the full height of the tower along the inside of its after side. At various levels inside the tower were horizontal platforms, at the after ends of which were access openings slightly larger than manholes, through which the ladder passed straight up. The tower was more than six feet from fore to aft at the crow’s-nest level, and tapered from four to three feet in width. There was only a narrow ledge around three-quarters of the opening in the platform at that level; the platform proper was toward the bow, and led to the door in the crow’s-nest. As a seaman climbed the ladder to the crow’s-nest, he faced astern until his feet were approximately level with the platform. To get from the ladder to the platform proper, he had to pivot, putting one foot on the starboard or port ledge, follow it with the other foot, complete his pivot and step forward along the ledge to the platform proper. Although the respondent describes the crow’s-nest and its approach as “purposely constructed so as to provide maximum protection and safety for members of the crew having to use it,” there were no devices intended to facilitate safe maneuvering from ladder, to platform; for support during this maneuver, the seaman could grasp one of the thin vertical beams located at intervals along the port and starboard sides, or a vertical, bulky rectangular pipe enclosing a radar cable and near the starboard side, or a horizontal stiffener or ledging that ran at shoulder-height around the tower. Respondent argues that the seaman also could simply spread his arms to brace himself against the sides of the tower. On the night of February 15-16, 1958, as the United States went at high speed and rolled in rough seas, the tower was plunged into darkness, just as the petitioner was executing the movement to the crow’s-nest platform from the ladder. Illumination within the tower was provided by five electric lights at various levels, but these burned out frequently. Two had been out for a long period and two others had gone out a few hours before the accident, leaving as the only light that which was at the crow’s-nest platform. At some point after petitioner had begun the maneuver from ladder to platform, but before he reached a place on the platform proper and away from the access opening, that last light went out. An instant later petitioner fell backwards across the opening and struck his head against the ladder and his lower back against the fore edge of the opening, leaving his body suspended in the opening. He grasped the ladder rungs and called for help from the lookout on duty in the crow’s-nest. With the lookout’s aid he was able to seat himself on the starboard ledge with his legs hanging down through the opening and his right arm around the cable pipe. The lookout returned to the crow’s-nest to phone the bridge for help. In his absence the petitioner became dizzy and fell through the opening to a place eight feet below the platform. The only issue before us on this phase of the case is whether the trial judge erred in instructing the jury that they might find the respondent liable for unseaworthiness or negligence for having failed to provide “railings or other safety devices” at the crow’s-nest platform. The Court of Appeals held that it was error to submit that question to the jury because “There was no expert testimony that proper marine architecture required the additional provision of railings or other safety devices on such a ladder or platform enclosed within a tower leading to a crow’s nest. Should the jury, under these conditions, have been permitted to decide whether proper marine architecture required railings or other safety devices? In two recent cases, this court has held that a jury should not be permitted to speculate on such matters in the absence of expert evidence.” 293 F. 2d, at 123. There was evidence, in the form of testimony and photographs, from which the jury might clearly see the construction at the crow’s-nest level which we have described. If the holding of the Court of Appeals is only that in this case there are peculiar fact circumstances which made it impossible for a jury to decide intelligently, we are not told what those circumstances are, and our examination of the record discloses none. If the holding is that claims which might be said to touch upon naval architecture can never succeed without expert evidence, neither the Court of Appeals nor the respondent refers us to authority or reason for any such broad proposition. This is not one of the rare causes of action in which the law predicates recovery upon expert testimony. See Wigmore, Evidence (3d ed. 1940), §§ 2090, 2090a. Rather, the general rule is as stated by Mr. Justice Van Devan ter, when circuit judge, that expert testimony not only is unnecessary but indeed may properly be excluded in the discretion of the trial judge “if all the primary facts can be accurately and intelligibly described to the jury, and if they, as men of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation . . . .” United States Smelting Co. v. Parry, 166 F. 407, 411, 415. Furthermore, the trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous. Spring Co. v. Edgar, 99 U. S. 645, 658. This Court has held, in a factual context similar to this, that there was no error, let alone manifest error, in having a jury decide without the aid of experts. Spokane & Inland Empire R. Co. v. United States, 241 U. S. 344, was an action by the United States to recover penalties for violation of the Safety Appliance Act provision requiring handholds or grab-irons to be placed on the ends of railroad cars used in interstate commerce. The defendant railroad offered expert testimony to establish that the substitutes provided on its cars would accomplish the statute’s purposes. The jury had inspected the cars, and the expert evidence was excluded when the United States objected that this “was a matter of common knowledge.” We held that “the court was clearly right in holding that the question was not one for experts and that the jury after hearing the testimony and inspecting the [cars] were competent to determine the issue . . . .” 241 U. S., at 351. In sum, we agree with Judge Smith in dissent below: “There was before the jury sufficient evidence, both from oral testimony and from photographs, for it to visualize the platform on and from which plaintiff fell and to determine whether some railing or hand hold in addition to the structures present was reasonably necessary for the protection of a seaman passing from the ladder to the platform in the swaying mast. “. . . [There is no] blanket proposition that any and all theories of negligence and/or unseaworthiness which might touch on the broad field of 'naval architecture’ may be properly submitted to a jury only if supported by expert testimony. Here the potential danger was fairly obvious and a jury should be perfectly competent to decide whether the handholds furnished were sufficient to discharge the owner’s duty to provide his seamen with a safe place to work. Such a determination hardly requires expert knowledge of naval architecture . . . 293 F. 2d, at 126. Indeed, “if there was a reason hidden from the ordinary mind why this condition of things must have existed, those facts called upon the defendant to make that reason known.” Missouri, K. & T. R. Co. v. Williams, 103 Tex. 228, 231, 125 S. W. 881, 882; and see Poignant v. United States, 225 F. 2d 595, 602 (concurring opinion). There is another question to be decided. The petitioner also sought maintenance and cure. The trial judge awarded past maintenance, which the respondent has not disputed, and also future maintenance for three years. The Court of Appeals set aside the award of future maintenance, saying: “There does not appear to be any sufficient basis, by opinion evidence or otherwise, for the finding that three years is the period reasonably to be expected for Salem to reach maximum improvement.” 293 F. 2d, at 125. The trial judge made no findings. We have therefore examined the evidence on the question in the light of what was said in Calmar S. S. Corp. v. Taylor, 303 U. S. 525, 531-532: “. . . [AJmounts [for future maintenance should be such] as may be needful in the immediate future for the maintenance and cure of a kind and for a period which can be definitely ascertained.” We agree that the evidence provides no support under that test for the award of three years’ future maintenance. We affirm as respects maintenance but otherwise reverse the judgment of the Court of Appeals. Since other grounds of reversal urged by the respondent were not reached by that court, the case is remanded to it for further proceedings in conformity with this opinion. It is so ordered. 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. 41 Stat. 1007, 46 U. S. C. § 688. The majority quoted from Martin v. United Fruit Co., 272 F. 2d 347, as follows: “ 'Finally, we reject the plaintiff’s contention that the trial court committed error in not permitting the jury to determine whether the placement of the hinge at the bottom of the dead-light was an improper method of ship construction so as to make the vessel unseaworthy. Surely this is a technical matter in which an expert knowledge of nautical architecture is required in order to form an intelligent judgment. Since no expert testimony was introduced, it was correct- to exclude this matter from the jury’s consideration.’ ” 293 F. 2d, at 123. The majority also quoted from Fatovic v. Nederlandsch-Ameridaansche Stoomvaart, Maatschappij, 275 F. 2d 188, in which the question was whether a stopping arrangement could feasibly be made part of a ton-and-a-half boom to keep it from swinging freely: “ 'In any event, the question was one of nautical architecture about which jurors lack the knowledge to form an intelligent judgment in the absence of expert testimony. Martin .... Since there was no expert testimony on the matter, it should not have been submitted to the jury.’ ” 293 F. 2d, at 123-124. Whatever may have required that the jury have the aid of expert testimony in those cases, no showing is made of the necessity here. Compare Texas & Pacific R. Co. v. Watson, 190 U. S. 287, 290, in which there may have been peculiar difficulties impeding installation of any truly effective safety device. 27 Stat. 531, 45 U. S. C. § 4. Although it was later held that the Safety Appliance Act has no room for the doctrine of equivalent, substitute devices, St. Joseph & Grand Island R. Co. v. Moore, 243 U. S. 311, the authority of Spokane on jury competence is unimpaired. The value of an expert’s testimony to explain what the best safety device might be is clear, but the question here is simply whether some such device should have been provided. Zinnel v. United States Shipping Board Emergency Fleet Corp., 10 F. 2d 47, 48. Nor would expert testimony about customary equippage be essential, Pure Oil Co. v. Snipes, 293 F. 2d 60, 71; nor, even if offered, would it have concluded the questions of unseaworthiness or negligence. Wabash R. Co. v. McDaniels, 107 U. S. 454, 460-461; Grand Trunk R. Co. v. Richardson, 91 U. S. 454, 469-470; The T. J. Hooper, 60 F. 2d 737; Kennair v. Mississippi Shipping Co., 197 F. 2d 605; June T., Inc., v. King, 290 F. 2d 404. Although the law favors the aid of experts if the problem is not one “upon which the lay or uneducated mind is capable of forming a judgment,” Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 472, if the matter is only arguably beyond common experience, expert testimony will be admitted with care. The rule reflects the consideration of avoidance of unnecessarily prolonged trials and attendant expense and confusion. Winans v. New York & Erie R. Co., 21 How. 88, 100-101; and see Thorn v. Worthing Skating Rink Co. (1876), reported in Plimpton v. Spiller, 6 Ch. D. 412, footnote at 415-418 (1877). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Raymond JOHNSON, Plaintiff, Appellee, v. H.K. WEBSTER, INC., Defendant, Appellant. No. 85-1096. United States Court of Appeals, First Circuit. Argued June 6, 1985. Decided Oct. 9, 1985. Irvin D. Gordon, Concord, N.H., with whom James O. Barney and Sulloway Hollis & Soden, Concord, N.H., were on brief, for defendant, appellant. W. Wright Danenbarger, Manchester, N.H., with whom Alan R. Kusinitz, Wiggin & Nourie, Manchester, N.H., John M. Shor-till and Shortill & Shortill, Sanford, Maine, were on brief, for plaintiff, appellee. Before CAMPBELL, Chief Judge, and BREYER and DAVIS, Circuit Judges. Of the Federal Circuit, sitting by designation. DAVIS, Circuit Judge. In this diversity tort case, defendant H. K. Webster, Inc. (Webster) appeals from a judgment entered on a jury verdict in favor of plaintiff Raymond Johnson (Johnson). The jury also found, in response to a special interrogatory, that the cause of the accident in which Johnson’s foot was crushed in a grain conveyor designed by Webster was 51% Webster’s negligent design of the machinery and 49% Johnson’s negligent conduct in working near the device’s exposed hazardous parts. • The jury awarded Johnson $400,000 in damages under the applicable Maine comparative negligence statute. Webster contends that the trial judge committed several errors, including: admission of certain improper expert testimony by two of Johnson’s witnesses, an erroneous charge to the jury on the issue of a manufacturer’s duty to warn of known hazards, and refusal to request an explanation from the jury as to their calculation of damages (and, when this request was denied, refusal to grant Webster’s motion for a new trial or, in the alternative, a remit-titur). Webster points out that, under the applicable law, a shift in the jury’s comparative negligence finding of one percent from Webster to Johnson (resulting in a 50-50 split) would have barred recovery. The conclusion appellant draws is that any error in such a case, even if small, could have resulted in a different verdict and is for that reason reversible. We have therefore scanned the record with particular care but, having found no reversible error on the part of the trial court, we affirm. I. Background In 1973, Webster designed an “under-track grain conveyor” for Cohen Milling Company (Cohen) in Saco, Maine. The conveyor serves to transport grains and meals from railroad hopper cars through an underground pipeline to storage silos located at the side of the track. Under Webster’s design, a hopper car full of grain is positioned over a 14 inch by 48 inch trench underneath the track. Ideally, when the trap on the underside of the hopper car is released, the grain flows down into the trench. In the trench is an auger, a screw-like device which pushes the grain through a pipeline into the storage bins. Webster’s design of the conveyor included a removable metal grate which fits over the undertrack trench. The spaces in the grate were about five inches square, sufficiently small to keep an adult’s feet out of the trench, but large enough to allow most grains to pass through smoothly. But in the early 1970’s (and to a certain extent, still today), the grain mills faced a problem of lumping. Certain products such as soybean meal would coagulate into large balls, often a foot in diameter. The spaces in a grate over the undertrack trench designed to keep feet out were too small to allow lumped materials to pass through. Webster’s design therefore specifically called for a removable grate to allow lumped materials to pass to the auger unimpeded. Appellee Johnson worked for Cohen in its milling operation. On September 16, 1980, Johnson emptied a hopper car of corn (a non-lumping grain) into the conveyor. He then moved the car down the track and began to sweep the corn lying at the sides of the trench. As was the habit at Cohen, the grate was not covering the trench into the conveyor. Believing he was to the side of the trench, but actually standing in front of it, Johnson stepped back into the convey- or. The auger gripped and crushed his right foot. After a series of surgical efforts to save the foot, doctors were forced to amputate Johnson’s right leg below the knee. Johnson filed suit against Webster in 1982 alleging negligent design of the conveyor, breach of warranty and strict liability in tort. After extensive discovery, the case came up for trial in 1984. At the start of the trial, Johnson dropped the breach of warranty counts. A major procedural issue at trial, now raised before us, was the admissibility of testimony offered by two of Johnson’s witnesses, Robert Flynn and Igor Paul. In each instance, Webster contended that the opinions advanced by the witnesses were not properly disclosed to defendant in response to pretrial interrogatories. The trial court limited Flynn’s testimony to matters raised at his deposition and admitted all of Paul’s testimony. At trial, Johnson proved approximately $422,000 in monetary losses from the accident, including $53,000 in medical expenses, $69,000 in lost earnings up to trial, and $300,000 in lost future earnings. After receiving unchallenged instructions from the trial judge, the jury returned a verdict in Webster’s favor on the product liability count and in Johnson’s favor on the negligence count. As already noted, the jury awarded damages in the amount of $400,000 and found fault of 51% on Webster’s part, 49% on Johnson’s. After the jury announced its verdict, counsel for Webster requested that the trial judge have the jury specifically confirm that the amount of damages which the jury set down in response to the jury interrogatory was actually the total amount of damages the jury found less the set-off for the degree of Johnson’s fault as required by Maine law. The trial judge refused to pose that post-verdict inquiry. After trial, Webster filed a motion for a new trial or, in the alternative for remittitur, contending that Johnson had proved only $400,000 of damages in toto and that the jury should have awarded only 51% of this amount. Webster also noted the unlikelihood that the jury, after subtracting 49% of its total damage assessment, would end up with an even figure like $400,000. The trial judge denied the motion. Webster filed a timely appeal raising all the issues we have mentioned. II. Testimony of Robert Flynn Robert Flynn was Cohen’s safety engineering consultant at the time of Johnson’s accident. The duty thus fell on Flynn to investígate and report on the incident. In his report, he noted that Johnson had failed to replace the safety grate over the trench before sweeping the area. Prior to trial, Webster took Flynn’s deposition and questioned him about his post-accident investigation. At this time Johnson had not indicated that he would rely on Flynn for expert testimony. Johnson had, however, placed Flynn on a general witness list. During pretrial discovery in 1982 and 1983, the trial court issued several orders requiring the parties to identify expert witnesses they expected to call at trial. The two sides took depositions of these experts at the end of 1983. At a pretrial conference on July 10, 1984, the court directed the parties to enter any objections to the other sides’ witnesses by September 6. On September 17, seven days before the trial was scheduled to begin, Johnson sought to amend its list of experts by adding Flynn as an expert. Webster objected, noting that it had deposed Flynn only as a “fact” witness with regard to his observations and impressions as safety engineer for Cohen, and not as to his expert opinions regarding the cause of Johnson’s accident or safety engineering generally. The trial court allowed Flynn to testify as an expert witness, but limited the scope of Flynn’s testimony to matters previously raised at his deposition. Prior to Johnson’s direct examination of Flynn, the trial judge stated: “In the event [Johnson’s counsel] attempts to elicit information from [Flynn] that’s not therein contained [i.e., not in his deposition testimony], the motion to strike will be received with favor.” Webster proffers two arguments with regard to the trial judge’s treatment of Flynn’s testimony. First, appellant urges that the trial court erred in allowing Johnson to call Flynn as an expert witness entitled to testify as to his opinions, when he had previously been listed and deposed as a “fact” witness entitled to relate only his first-hand observations and impressions. Webster points out that Johnson did not list Flynn as a possible expert witness until one week before trial. Under Fed.R.Civ.P. 26(b)(4)(A) and the district court’s pretrial orders, the argument runs, Johnson should have listed Flynn as an expert during discovery, set forth a synopsis of Flynn’s expected testimony, and afforded Webster the opportunity to take Flynn’s deposition. Without that background information, Webster’s counsel says that he was surprised by Flynn’s testimony and placed in a poor position to cross-examine him. To respond to this argument with respect to Flynn’s direct examination calls upon us simply to restate what actually occurred: the trial judge limited Flynn’s testimony to matters which had been raised at his deposition. This negated any possible prejudice from Flynn’s being able to testify at the trial as to any new matter. In fact, at one point Webster’s counsel (Mr. Gordon) objected to a question posed by Johnson’s attorney (Mr. Danenbarger). The following colloquy ensued: MR. GORDON: At the outset of this trial we objected to this witness offering any expert testimony on the grounds that there had not been adequate disclosure. Your Honor ruled at that time, if I recall, that his testimony on any expert questions were to be limited to subject matters in that area that had been taken up [sic, at] his disposition [sic]. He is now being asked about an incident [that], to my best recollection, was not treated in that deposition. THE COURT: Well, if it isn’t, then I’ll sustain it. MR. DANENBARGER: Well, I— MR. GORDON: I may stand corrected. We’re talking about 125 pages of transcript. But my distinct recollection, Your Honor, is that this is not a matter covered in that deposition. MR. DANENBARGER: Your Honor, I’d ask Mr. Gordon to turn to — (examining deposition) — page 88 and 89 of the transcript of Mr. Flynn’s deposition. (Brief pause; Mr. Gordon reviewing deposition.) MR. GORDON: Your Honor, having in mind my prior objection to his expertise, which I will have to stand on, we will withdraw the objection to the question on the ground it was not asked. THE COURT: All right. MR. GORDON: Thank you. The court thus expressed and demonstrated its willingness to entertain any objection by Webster that the scope of the direct testimony was beyond the subjects covered at the deposition, and thus avoided any source of surprise and prejudice to Webster. We have found no instance in the record in which the trial judge overruled an objection by Webster on this ground. On cross-examination, the trial judge did limit Webster’s questions to matters raised at the deposition, matters which it had already had a chance to explore once and should have been prepared to confront at trial. Nevertheless, Webster says that it was not properly prepared because (at his deposition) Flynn had on direct examination expressed opinions on issues involved in the case which it had not then explored because Flynn was not then expected to testify as an expert. Moreover, Webster argues that its cross-examination of Flynn as an expert should not have been restricted to his deposition expert testimony. Without deciding whether or not it was error for the judge so to curtail Webster’s cross-examination of Flynn, we believe that, if any such error occurred, it was harmless in the circumstances here. Despite the trial court’s limitation, Webster’s counsel was able to elicit from Flynn extensive testimony, both factual and expert, about Johnson’s culpable role in the accident (by not using the grate) and the possibility of an accident even if other safety devices had been present. Flynn expressly testified and reiterated, for instance, that a piece of equipment could become more hazardous by the addition of some “safety devices.” He also testified as to the by-passing of safety devices by workmen. Finally, he said that he had never seen or heard of an “undertrack grain conveyor of this type which was electrically interlocked with a grate over the undertrack conveyor.” We think, in sum, that it was highly improbable that, if Flynn had been allowed to answer the few specific questions to which Johnson’s counsel successfully objected on cross-examination (because they had not been raised at the deposition), any further substantial benefit to Webster’s case would have ensued. III. Testimony of Igor Paul At the time of the trial, Professor Igor Paul was on the faculty of the Massachusetts Institute of Technology in the Department of Mechanical Engineering. Soon after the accident, Johnson engaged Paul to examine the conveyor and its safety features. In May 1983, Paul issued an opinion regarding the safety features, which reads in pertinent part: In my professional opinion the design of the underground auger conveyor designed and installed by [Webster]... was improper, inadequate and defective in failing to provide effective permanent or safety-interlocked removable grate guarding for the intake area of the conveyor trough____ The large opening above the auger screw in this design should have been provided with a grate guard safety interlocked to two hermetically sealed power interrupt switches in a self-testing interlock circuit which would stop auger motion whenever the guard was removed for any reason... and would not allow powered auger motion until the guard was replaced. As Paul would later testify, the system he described would render the conveyor nonfunctional when the grate was removed. The self-testing interlock circuit would insure that, if the system failed, it would fail on the side of safety and the system would shut down completely. Soon after he received the opinion, Johnson notified Webster that Paul would testify that the conveyor was unsafe “because it could be operated while the safety grate was not in place... [and] regarding various safety devices which should have been included as part of the grain auger.” Webster took Paul’s deposition in September 1983 and questioned him extensively about his inspection of the conveyor site and his opinion regarding its safety. During his deposition, Paul indicated that his inspection of the conveyor was not complete. Just before trial, Johnson confirmed in a submission to the trial court that “there is no need to anticipate any testimony different [from] that given at his [Paul’s] deposition.” Subsequent to his deposition, Paul became aware of the lumping problem associated with certain grains. This made his grate interlock system impossible to use since Cohen would have to remove the grate to feed the lumped material into the conveyor. Under Paul’s theory, the power would then shut off and the conveyor would be useless. For operation with lumping grains, the conveyor would have to operate without the grate in place. At trial, Paul testified as to other specific methods of guarding the conveyor trench. He pointed out that “if you just cannot feed material through a safety grate, then you have to provide alternate ways of guarding.” He listed several possible devices which could be used on Cohen’s conveyor, including: a split grate which could open but which would still provide a type of fence around the trench; a plain fence around the trench; and, “if you had to go to that extreme... an interlock side grating so that you could only operate the auger if the grate were removed, if there was a railroad car in place.” This last device would have prevented the conveyor from operating when the grate was not in place unless a railroad car was stationed over the trench. Webster asserts that this testimony should have been excluded because Johnson never disclosed prior to trial that Paul had formulated possible safety procedures (besides the type of grate interlock he specifically mentioned at his deposition) for use at the Cohen conveyor. Webster relies on Fed.R.Civ.P. 26(e) which states: Supplementation of Responses: A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty reasonably to supplement his response with respect to any request addressed to... (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which he is expected to testify, and the substance of his testimony. In appellant’s view, Johnson had a duty to inform it of Paul’s alternate ideas regarding possible safety devices for the Cohen conveyor. The 1970 Amendments to the Federal Rules of Civil Procedure added several new provisions on pretrial discovery of expert witnesses, including Rules 26(b)(4) and 26(e), supra. The court in Smith v. Ford Motor Co., 626 F.2d 784, 791-93 (10th Cir. 1980), cert. denied, 450 U.S. 918, 101 S.Ct. 1363, 67 L.Ed.2d 344 (1981), has provided a detailed description of the origins and purposes of the new treatment of expert discovery in the Federal Rules. Briefly, the ill which the amendments sought to cure was the heavy burden placed on a cross-examiner confronted by an opponent’s expert whose testimony had just been revealed for the first time in open court. As the Advisory Committee Note to Rule 26(b)(4) states, this situation “produces in acute form the very evils that discovery has been created to prevent. Effective cross-examination of an expert witness requires advance preparation.” The Advisory Committee thus proposed Amendments to Rule 26 on the ground that, under the old prohibition against discovery of expert witnesses, “the narrowing of issues and elimination of surprise which discovery normally produces are frustrated.” In order to enforce the Rule, the Advisory Committee Note to Rule 26(e) calls for “sanctions imposed by the trial court, including exclusion of evidence, continuance, or other actions as the court may deem appropriate.” Rule 26(e)’s supplementation requirement is not absolute. As the rule itself makes clear, the instances in which a party must supplement discovery are limited; if the rule called for supplementation in all instances, the actual trial would be merely a recital of earlier responses to written interrogatories and deposition questions. For instance, nothing in the rule or the Advisory Committee Note forecloses an expert from revising or further clarifying opinions during redirect examination or surrebuttal in response to points raised by the opposing party during its cross-examination or the presentation of its case. We must therefore not read Rule 26 mechanically, but rather in light of its dual purposes, “narrowing of issues and elimination of surprise.” The cases which have considered objections to proffered testimony because it was not earlier disclosed have reflected this need to balance fairness to the opposing party with the realities of adversarial litigation. For example, in Smith v. Ford Motor Co., supra, the court reversed a judgment because the trial judge improperly admitted testimony from a medical expert relating to the connection between plaintiff’s injuries and an alleged defect in plaintiff’s automobile. Plaintiff had stated that the expert would testify only as to plaintiff’s injuries. The appellate court noted that plaintiff had “misled Ford into believing that his testimony would relate solely to plaintiff’s injuries and not to their relationship to a defective seat belt.” 626 F.2d at 797. Similarly in Holiday Inns, Inc. v. Robertshaw Controls Co., 560 F.2d 856 (7th Cir.1977), the court held that testimony regarding plaintiff’s alternate theory as to the origins of a fire in a hotel kitchen should be excluded. Plaintiff alleged during pretrial discovery that a control thermostat in a deep fat frier malfunctioned. Defendant in an interrogatory asked specifically if plaintiff alleged any other causes. Plaintiff responded in the negative. The court ruled that plaintiff could not then present evidence at trial that the frier lacked an oil level sensing device because “that resulted in defendant’s being surprised at trial by plaintiff’s alternative theory.” 560 F.2d at 858. On the other hand, in Stick v. United States, 730 F.2d 115 (3d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 294, 83 L.Ed.2d 229 (1984), the Third Circuit approved a district court’s ruling allowing medical testimony based on research published only a few weeks before trial. The appellate court noted that “plaintiffs could adequately prepare to cross-examine [the witness] from already available data.” Id. at 118. In Murphy v. Magnolia Elec. Power Ass’n., 639 F.2d 232, 234, 235 (5th Cir. 1981), the court held that plaintiff’s expert should have been allowed to testify as a rebuttal witness “despite the fact that appellants breached their duty under Fed.R.Civ.P. 26(e),” given “the absence of prejudice and the essential nature of the evidence involved.” As these cases demonstrate, the emphasis in evaluating the decision to admit testimony over a Rule 26(e) objection entails careful balancing. Trial and appellate courts should look to the conduct of the trial, the importance of the evidence to its proponent, and the ability of the defendant to formulate a response. DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1201-02 (3d Cir.1978). It is noteworthy that, in those cases in which testimony was held properly excluded, the courts have found some evasion or concealment, intentional or not, on the part of the litigant offering the evidence. Closely linked to the issue of surprise and prejudice — its converse side — is the question of whether the party objecting to the evidence might have been able to confront the evidence with a minimum of disruption to the trial. Courts have often found it significant whether the objecting party sought a continuance to prepare to rebut the testimony. The Advisory Committee Note to Rule 26(e) expressly states that one possible sanction for a party’s failure to provide supplemental responses is the granting of a continuance; here, Webster asked the trial judge for the far more drastic remedy of excluding the testimony in issue. Courts have looked with disfavor upon parties who claim surprise and prejudice but who do not ask for a recess so they may attempt to counter the opponent’s testimony. Phil Crowley Steel Corp. v. Macomber, Inc., 601 F.2d 342, 344 (8th Cir.1979); see also, Dychalo v. Cop-perloy Corp., 78 F.R.D. 146, 148 (E.D.Pa.) affd without op., 588 F.2d 820 (3d Cir. 1978) (“Even if we are incorrect in finding constructive compliance with 26(e)(1) in light of other notices, the appropriateness of plaintiff’s proposed cure at trial — the exclusion of all Mr. Sargent’s testimony— does not logically follow”); cf. Stich, supra, 730 F.2d at 118 (noting that plaintiff who claimed surprise by physician’s use of recently completed report presented “a problem which plaintiffs did nothing to mitigate”). Although the issue of the exclusion of Paul’s testimony because of Johnson’s presumed duty to supplement his original response regarding that presumed testimony does present a close question, we do not conclude that Webster has demonstrated an abuse of the trial judge’s discretion to control discovery and the admission of evidence. See Part II, supra. Johnson had clearly indicated that Paul would discuss safety devices using interlock circuitry (though a different type of such circuitry), and Paul never departed from that general scheme. Webster says that this case is identical to Holiday Inns, supra, because Paul’s testimony at trial related to an apparatus different from the device discussed in detail at his deposition, but it is clear that, unlike the plaintiff in Holiday Inns, Johnson responded correctly to the interrogatory and adequately informed Webster of the general technology on which it would, and in fact did, rely. See DeMarines v. KLM Royal Dutch Airline, 580 F.2d at 1201-02 (in which the court ruled that defendant’s expert’s testimony regarding the particulars of plaintiff’s exact physical condition prior to an accident should be admitted when defendant had stated generally that it would raise plaintiff’s pre-existing illness as an element of the case). Moreover, Webster presented the judge solely with a motion to exclude the testimony, the most drastic remedy. Webster never asked for a trial continuance so it could prepare to respond. One excuse given us is that the trial judge never recognized any prejudice to Webster, so he would not have granted a continuance. However, the trial judge did not say that he saw no prejudice to Webster. He ruled merely that in this situation he saw no reason to grant a motion to strike. Nor is it a proper excuse that Webster could not retain an expert knowledgeable in the proposed circuitry (i.e., an interlock circuit between the grate and the railroad cars) in time to counter Paul’s testimony, As shown in footnote 8, supra, Webster already knew (at least five days before) that the subject was on plaintiff’s mind. But Webster never retained an expert on interlock circuitry at all. Its experts were familiar with the designs of grain mills and conveyors. The intention was simply to rebut Paul’s original opinion regarding the interlocked grate with testimony on how that solution would be impossible given the lumping problem. In his testimony, Paul surmounted that difficulty by applying the same technology in a different way. Webster was then prepared only to rebut a particularly narrow point as to interlock circuitry, but that point never materialized. We cannot say, because Webster’s original trial strategy approached the interlock issue so narrowly and it did not properly seek to cure its limited preparation when the new techniques surfaced, that the trial judge was in error. See Phil Crowley Steel Corp., supra, 601 F.2d at 344 (in which the court ruled that undisclosed expert testimony correctly stating plaintiff’s damages should not be struck merely because the other party was prepared at trial only to rebut the previously disclosed incorrect testimony). IY. Jury Instruction on the Duty to Warn Johnson contended at trial that Webster failed to provide warnings to those who used the conveyor that it could be dangerous when operated without the grate. The failure to warn became an element of Johnson’s case on the strict liability count and also the negligence count. Webster now argues that the trial court erred in failing to instruct the jury that the duty to warn refers to latent dangers in the normal and intended use of the product and there is no suc^ unless the danger is concealed or *ess ^an °bvious. The law of Maine on the duty of a manufacturer to warn of the dangers involved when using its product comes directly from the Restatement (Second) of Torts § 388 (1965). Cuthbertson v. Clark Equipment Co., 448 A.2d 315 (Me.1982). That section provides: In his instructions, the trial judge recited § 388 practically verbatim. One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a Person for whose use is supplied, if the supplier (a) knows or has reason to know that the chattel is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous. An appellate court reviews a trial court’s jury instructions only to insure that “the charge fairly and accurately states the law.” Johnson v. A/S Ivanans Rederi, 613 F.2d 334, 350 (1st Cir.1980), cert. dismissed, 449 U.S. 1135, 101 S.Ct. 959, 67 L.Ed.2d 325 (1981). Our task is to scrutinize not the style but the substance. In this instance, section 388(b), supra, indisputably covers the very point defendant wished to make. See comment k thereto. Obviously, the trial judge did not err in reading it to the jury word for word, instead of modifying the accepted Restatement language at the behest of one of the parties. V. The Damage Award Webster’s final assignment of error concerns the propriety of a $400,000 damage award in the context of this case. This challenge has two facets: first, that the district court should have asked the jury after it announced its verdict (as Webster sought) expressly to confirm that it had correctly applied Maine’s comparative negligence statute as to the award; and, second, that under that statute the evidence would not sustain a verdict for plaintiff of as much as $400,000. There is, first of all, no attack on the trial court’s correct, very explicit and detailed charge as to how that jury was to calculate the award under the Maine statute. The jury was indisputably directed to reduce the total damages by Johnson’s negligence, if any. In addition, question No. 7 (to the jury) was equally express in stating that any recovery by Johnson was “to be reduced by the percentage to which his comparative negligence causally contributed to the accident.” There can, in short, be no reversal on the ground that the jury was in any way uninformed or inadequately instructed — or that simply because of the amount of the award the court had to reconfirm its instructions after the verdict. Is there, however, any good reason to think the jury did not follow its instructions or went beyond its proper province? Webster points to the unlikelihood that the jury calculated damages in the amount of $784,-312.72, 51% of which equals precisely $400,-000. We are told that the evenness of the damage award is persuasive evidence that the jury intended to award only $204,000, or 51% of the total $400,000. Webster also notes that Johnson proved specific losses of only $422,000, which is close to the $400,-000 total the jury awarded. In considering these arguments, we must grapple with two problems: whether the evenness of the award is any true indication of jury error, and whether the record supports a total award of nearly $800,000. Webster seeks mathematical precision in an area where imprecise calculations, gross approximations, and rough projections are the most one can normally expect. A tort award ordinarily covers various types of compensation to which a tort victim is entitled. Many of these elements of monetary damages — e.g., future earnings — are themselves only educated guesses hardly likely, if precision is demanded, to result in an even figure given the complexity of present value calculations and the odd figures normally associated with interest and inflation rates, as well as lifespans. Other elements {e.g., pain and suffering) are not readily measurable. Thus our system of justice often grants the jury leeway to deal in whole numbers and even amounts where more exact computations are too impractical or difficult. The fact that here the jury ended with an even number is not in itself cause for reversal, or even surprise—and rather seems to be expected under the applicable Maine statute, which permits the jury to reduce the total figure by dollars and cents “to the extent deemed just and equitable, having regard to the claimant’s share in the responsibility for the damages.” 14 Me.Rev.Stat.Ann. § 156. See also footnote 12, supra. Nor does the closeness of the $400,000 verdict to the $422,000 in specific pecuniary losses suffered by plaintiff show that the award was the product of jury error. A total of gross damages of nearly $800,000 in this case would not be viewed as excessive. In Maine, the proof of monetary loss is only the beginning of the damages calculation. Pain, suffering and permanent impairment are all compensable. Kaler v. Webster, 348 A.2d 702, 705 (Me.1975); Isaacson v. Husson College, 332 A.2d 757, 763 (Me.1975). Maine’s Supreme Judicial Court has stated that a “marked disparity between actual expenses incurred and the total damages awarded will only rarely, if ever, provide a per se basis for holding damages excessive.” Jamshidi v. Bowden, 366 A.2d 522, 524 (Me.1976). In Kaler, supra, for example, plaintiff incurred $1,153 in expenses and $1,700 in lost wages because of an accident in which he suffered a 30% loss of the use of his ankle; the court ruled that a $60,000 verdict in plaintiff’s favor should not be overturned. Although the parties have not cited, and we have not found, any Maine case similar to this, several other federal appellate courts have reviewed damage awards in cases stemming from similar accidents. In one such case, De Santis v. Parker Feeders, Inc., 547 F.2d 357 (7th Cir.1976), the Seventh Circuit affirmed a trial court’s decision not to disturb an $840,000 award to a boy who lost his left leg below the knee in the auger of his father’s cattle feeder. The award included $300,000 for pain and suffering up to trial and $500,000 for future damages. With regard to the latter award, the court noted that “[t]he boy has lost his leg, and there will not be a day in his life when he will not have to cope with that.” Id. at 366. In light of Johnson’s injuries, we cannot agree with Webster that the $400,-000 verdict was probably the gross jury award, or that a gross total of about $800,-000 could not be upheld. We need not describe the series of surgical procedures by which doctors initially attempted to save Johnson’s leg. Moreover, subsequent to the initial amputation, Johnson underwent two further “stump revisions,” or additional amputations. He has also undergone three nerve block procedures, but still suffers from phantom pain and neuromas. Given the very full deference which Maine courts grant to the jury’s damage award, we cannot say that an $800,000 verdict would, in light of Johnson’s monetary losses and continued physical and mental suffering, be excessive. For these reasons, the judgment of the district court entered on the jury’s verdict is Affirmed. . The parties have stipulated that the law of Maine applies to this case. 14 Me.Rev.Stat.Ann. § 156 provides in pertinent part: Where any person suffers death or damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that death or damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the jury thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. If such claimant is found by the jury to be equally at fault, the claimant shall not recover. . There is no challenge as to the sufficiency of the evidence of liability in itself. . See Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946) (to determine whether error is reversible, an appellate court should consider "the character of the proceeding, what is at stake upon its outcome, and the relation of the error asserted to casting the balance for decision on the case as a whole’’); cf. Fed.R.Civ.P. 61 (harmless error rule). . In the record, the auger in the Webster grain conveyor is likened to the inner mechanism of a meat grinder, which grips meat inserted in the top of the grinder and presses it against the grinding blades. . Rule 26(b)(4)(A) provides that a party may obtain a list of the opposing party’s expert witnesses, the subject matter of their testimony, and the substance of their opinions. . Chief Judge Campbell and Judge Breyer believe that, to the extent that the district judge’s rulings were meant to limit Webster’s cross-examination to the same questions Webster posed during the deposition, this was error. While Johnson's direct examination could properly be restricted to Flynn’s deposition testimony to prevent the introduction of any surprise opinion evidence, this was no basis, in the majority’s view, for restricting Webster’s cross-examination in the same manner. Webster’s failure to ask certain questions of Flynn during the deposition did not effect a waiver of its right to ask those questions at trial; indeed, tactical decisions of this nature are often the very essence of a party’s trial strategy. Of course, Webster’s cross-examination of Flynn could have been properly limited to the subject matter covered in Flynn’s direct under Fed.R.Evid. 611(b), but it is not clear that this is what the district judge had in mind. In any case, all the members of the panel are unanimous in believing that any error in this respect was harmless. . The parties have called to our attention the four-part test enunciated by the Third Circuit in Meyers v. Pennypack Woods Home Ownership Ass’n., 559 F.2d 894, 904-05 (3d Cir.1977). That case differs because it concerned a witness who had never been put on a witness list. That type of case does not involve the precise problems which arise when, as here, a witness is expected but the particular testimony may not be. We agree with the Third Circuit that the two most important factors to be considered are the prejudice and surprise suffered by the opposing party, and that party's ability to cure the prejudice. . Five days before Paul testified, Johnson had expressly asked Mr. Ralph Webster (a leading officer of appellant) about interlocks keyed "to the presence 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_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Frederick K. MOORE, Petitioner-Appellant, v. P. G. SMITH, Warden, U. S. Penitentiary, Terre Haute, Indiana, et al., Respondents-Appellees. No. 17246. United States Court of Appeals Seventh Circuit. June 16, 1969. Rehearing Denied July 14, 1969. Frederick K. Moore, pro se. K. Edwin Applegate, U. S. Atty., David L. Casterline, Asst. U. S. Atty., Indianapolis, Ind., for appellee. Before CUMMINGS and KERNER, Circuit Judges, and HOFFMAN, District Judge. . Judge Hoffman is sitting by designation from the United States District Court for the Northern District of Illinois. CUMMINGS, Circuit Judge. Petitioner’s application for habeas corpus raises various questions concerning the validity, timeliness and efficacy of a mandatory release violator’s warrant issued by the United States Board of Parole. In an unreported memorandum opinion, the district court held that petitioner was not entitled to relief and therefore granted the Government’s motion for summary judgment. Petitioner’s pro se appellate briefs evidence a thoughtful attempt to present the relevant judicial authorities in á complex area of statutory regulation. Unfortunately, the opposing brief has chosen not to meet the significant questions raised by this appeal. On January 16, 1959, petitioner received consecutive 5- and 3-year sentences after pleading guilty to two counts of an indictment charging him with having conspired to transport counterfeit securities, in violation of 18 U.S.C. §§ 371 and 2314. In April 1964, after five years and three months’ imprisonment, he was given a so-called “mandatory release” pursuant to 18 U.S.C. § 4163, thus making him the equivalent of a parolee under 18 U.S.C. § 4164. On November 30, 1965, petitioner was arrested and arraigned before the United States Commissioner in Cleveland for violating 18 U.S.C. § 2314 by transporting counterfeit securities. Fourteen days after his arrest, a mandatory release violator’s warrant was issued by the United States Board of Parole, commanding that the warrant be executed by taking petitioner into custody “until he has been afforded a preliminary interview with a person designated by the Board of Parole and until authorized to transport him as ordered.” The reason given for the issuance of the warrant was that “reliable information has been presented to the undersigned Member of this Board that said prisoner named in this warrant has violated the conditions of release.” According to its face, the warrant was received by the United States Marshal in Cleveland on December 15, 1965. Early in January 1966, petitioner was released on bond for the November 1965 offense. He remained under the supervision of the local Parole Office until March 31, 1966, when a two-count indictment was returned and the bond raised and he was placed in the custody of the United States Marshal and detained in the Cuyahoga County jail in Cleveland. On October 31, 1966, petitioner pled guilty to violating 18 U.S.C. § 2314 and the general conspiracy provision (18 U.S.C. § 371), was sentenced to three-year concurrent sentences on these two counts and commenced serving those sentences. One day later, the district court found, the mandatory release violator’s warrant was returned to the United States Board of Parole unexecut-ed. The court also found that on February 6, 1967, the warrant was lodged as a de-tainer at the Federal Penitentiary at Terre Haute, Indiana, where petitioner was serving the 1966 sentences. According to his briefs in this Court, this was the first time that petitioner was informed that such a warrant had issued. The warrant was executed on April 21, 1968, when petitioner’s 1966 sentences expired. Petitioner thereupon commenced serving a new term of 1011 days under the 1959 sentences. On June 4, 1968, after the customary hearing, his 1964 parole was revoked. The district court held that where, as here, a mandatory release violator’s warrant was issued because of a “parolee’s” arrest for a crime, it need not contain a statement of the reasons for seeking parole violation. The court also held that the warrant was timely issued and that there was no undue delay in holding the parole revocation hearing. Since no factual matters were controverted, summary judgment was entered for the Government. Petitioner asserts that the failure to execute the concededly timely issued warrant prior to the expiration of the 1966 sentences on April 21, 1968, deprived the Parole Board of jurisdiction over him by reason of the intervening expiration of the maximum term of his 1959 sentences. He alternatively asserts that the delay in execution of the warrant deprived him of due process by requiring him to serve the remainder of his 1959 sentences consecutively to the 1966 sentences. However, 18 U.S.C. § 4205 requires only that issuance take place within the maximum term of the sentence, and therefore the Courts of Appeals have uniformly held that as long as a mandatory release violator’s warrant is issued prior to the expiration of the maximum sentence from which the violator was released under Í8 U.S. C. § 4163, the execution of the warrant may take place after the expiration of the maximum sentence. Here the warrant was issued on December 14, 1965, which was long prior to the July 19, 1966 date on which petitioner contends his 1959 sentences expired. Even if we were to agree that the period during which petitioner was free on bond pending disposition of the 1965 charges should be counted in determining whether the maximum term of his 1959 sentences had expired, it is clear that upon his return to the Cuyahoga County jail on March 31, 1966, he was incarcerated by reason of the intervening 1965 offense and not by reason of the violation of the terms of his release from the earlier sentences. The effect of such incarceration was to toll the running of the maximum term of the 1959 sentences. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399. This rule is reinforced by 18 U.S.C. § 4205, which makes clear that the unexpired term of imprisonment of a mandatory release violator runs from the date he is returned to the custody of the Attorney General “under said warrant.” Here the petitioner was not deprived of his liberty by reason of the violator’s warrant until the warrant was executed upon the expiration of the intervening prison term. To avoid the thrust of the authorities collected in note 4, petitioner asserts that the delay in execution of the warrant constituted a waiver of jurisdiction or a confession that no violation had in fact occurred. He argues from this that summary judgment was improper and that he is entitled to a hearing on this question of fact. But the settled administrative practice of lodging a warrant as a detainer following the conviction and commitment to prison for a crime committed while on release rather than interfering with the orderly procedure of trial by executing the violator’s warrant, negatives any inference of intentional waiver or confession of error. It is fanciful to suppose that by allowing the suspected parole violation to ripen into a criminal conviction with all the safeguards such proceedings entail, the Parole Board can be held to have waived its authority to impose a penalty for violation of the terms of release. As Mr. Justice Black has noted: “Unless a parole violator can be required to serve some time sometime in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified.” Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S.Ct. 872, 874, 82 L.Ed. 1399. The delay caused by the Board’s preference for basing a parole revocation on a criminal conviction rather than on its own finding that a crime has been committed does not connote an admission that no ground existed for believing a violation had occurred prior to the issuance of the warrant. Petitioner complains that the lack of notice of the existence of the warrant until February 1967 disabled him from bringing to the sentencing judge’s attention the likelihood that he would be returned to prison to serve the balance of his prior sentence, thus foreclosing the judge from providing that the new sentence should run concurrently with the balance of the prior sentence. However, the Parole Board has sole authority to determine whether the balance of the prior sentence should be served as a penalty for the violation on release. Zerbst v. Kidwell, supra. It would thus be beyond the power of the district judge to revive the prior sentence and require that it be served concurrently with the new sentence. Tippitt v. Wood, 78 U.S.App.D.C. 332, 140 F.2d 689, 692 (1944); United States ex rel. Quinn v. Hunter, 162 F.2d 644, 648 (7th Cir. 1947). Nor does the Parole Board have any obligation to execute its warrant during the term of a subsequent sentence so as to make the two terms concurrent. Neal v. Hunter, 172 F.2d 660 (10th Cir. 1949). It is true that the sentencing judge, if apprised of the pendency of the violator’s warrant, could have chosen to shorten the new sentence to take account of the balance of the prior sentence remaining to be served. But since petitioner received a much shorter sentence for the same type of offense in 1966 than he had in 1959 and since the total sentence imposed in 1966 was only slightly longer than the 1011 days remaining to be served on the 1959 sentence, it seems highly unlikely that the sentencing judge could have been persuaded to reduce the length of the new sentence. Indeed, the record does not disclose whether the sentencing judge was even aware of the fact that this was petitioner’s second offense, a fact which might have weighed against petitioner in the sentencing process rather than in his favor. In any event, such questions of reduction of sentence were for the sentencing court rather than for court in which habeas corpus is sought. See Mock v. United States Board of Parole, 120 U.S.App.D.C. 248, 345 F.2d 737, 739 (1965). The record reveals no attempt by petitioner to bring the existence of the warrant to the attention of the sentencing court by way of a motion for reduction of sentence, and if such a motion was made, that would in itself undercut petitioner’s claim of prejudice. In addition, the Regulations clearly provide that upon the lodging of a detainer the prisoner shall be advised that he may communicate with the Board relative to the disposition of the warrant. 28 C.F.R. § 2.37(c). In view of the pleas of guilty which petitioner entered to the 1965 charges, he is not in the position of the petitioners in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963) (en banc), certiorari denied, Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316, who were charged with unspecified parole violations other than crimes and complained of the absence of an opportunity to receive a hearing on the nature and truth of the charges before being returned to prison. Petitioner cannot sleep on his administrative remedies for fear that he has no case and then claim prejudice by reason of the passage of time. No claim is made here that upon execution of the warrant the Parole Board did not promptly convene a hearing on the revocation of petitioner’s release. Relying on Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963) (en banc), certiorari denied, Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316, petitioner next argues that the warrant was invalid on its face for want of a specific statement of the facts which formed the basis for its issuance. Of course, as the district court noted, the obvious reason for the issuance of the warrant was petitioner’s arrest two weeks beforehand for a fresh violation of the statute prohibiting transportation of counterfeit securities. Petitioner asserts that the validity of the warrant must be judged as of the time it was issued and cannot be sustained by reference to the fact that petitioner subsequently pled guilty to the crimes for which he was arrested. This argument was rejected by this Court in Starnes v. Markley, 343 F.2d 535 (7th Cir. 1965), certiorari denied, 382 U.S. 908, 86 S.Ct. 246, 15 L.Ed.2d 160, where parole violations other than crimes were admitted by the petitioner after the warrant had been issued and executed. The Court noted that the requirement in Hyser v. Reed, that the warrant contain a statement of the basis for its issuance would not apply strictly to situations where the violations were admitted or evidenced by a criminal conviction. See Mock v. United States Board of Parole, 120 U.S.App.D.C. 248, 345 F.2d 737, 738 (1965). We note the statement of Judge Burger in the Hyser case that in regard to the administrative warrants employed by the Parole Board “Congress evinced no intent to require precisely the same formalities and safeguards as to those contained in the Constitution for criminal arrests.” 318 F.2d at 241. We hold only that in view of the facts that the warrant in the present case was lodged as a detainer after petitioner’s guilty pleas and conviction for crimes committed while on release from his previous sentence and that the warrant was executed only after the expiration of the intervening sentence, petitioner sustained no prejudice by the failure of the warrant to name the intervening crime as the cause for issuance of a violator’s warrant. On the special facts of this case we do not find prejudicial error in the deficiencies in the warrant, although it would seem that in the normal case due process would require (and the Parole Board would be well advised to insure) that a parolee, probationer, or mandatory releasee be given notice in the warrant of the nature of the alleged violation and of the “reliable information” upon which issuance of the warrant was based. See Hyser v. Reed, supra, at pp. 243, 245. Petitioner’s remaining contention that 18 U.S.C. § 4205 is unconstitutional insofar as it requires him to reserve the time spent on release was pre- viously rejected by this Court in Dolan v. Swope, 138 F.2d 301 (7th Cir. 1943), and we see no reason or intervening change in the law requiring us to depart therefrom. See Weathers v. Willingham, 356 F.2d 421 (10th Cir. 1966); O’Callahan v. Attorney General of United States, 351 F.2d 43 (1st Cir. 1965) (per curiam), certiorari denied, 382 U.S. 1017, 86 S.Ct. 632, 15 L.Ed.2d 531. Affirmed. . Apparently because of an ambiguous assertion on p. 3 of the habeas corpus petition, the district court found that petitioner first learned of the existence of the warrant “in February of 1968.” . 18 U.S.C. § 4205 provides that a prisoner’s unexpired term shall begin to run from the date he is returned to custody under a mandatory release violator’s warrant. According to this statute, his time on parole does not diminish the time he was sentenced to serve. . See Shelton v. United States Board of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567, 570-571 (1967); Castillo v. United States, 391 F.2d 710 (2 Cir. 1968); Stockton v. Massey, 34 F.2d 96 (4th Cir. 1929); Tirado v. Blackwell, 379 F.2d 619 (5th Cir. 1967), certiorari denied, 390 U.S. 992, 88 S.Ct. 1186, 19 L.Ed.2d 1301; United States ex rel. Jacobs v. Barc, 141 F.2d 480 (6th Cir. 1944), certiorari denied, 322 U.S. 751, 64 S.Ct. 1262, 88 L.Ed. 1581; Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967); Schiffman v. Wilkinson, 216 F.2d 589 (9th Cir. 1954), certiorari denied, 348 U.S. 916, 75 S.Ct. 299, 99 L.Ed. 719; Robinson v. Willingham, 369 F.2d 688 (10th Cir. 1966). Consistently with these cases, the Parole Board, as here, may follow the procedure of lodging a detainer and executing the warrant after the expiration of the new sentence being served by the prisoner. See Mock v. United States Board of Parole, 345 F.2d 737, 739 (1965), and 28 C.F.R. §§ 2.37 and 2.38. Taylor v. Simpson, 292 F.2d 69S (10th Cir. 1961), on which petitioner relies, does not require early execution of the warrant. . This date accords with the petitioner’s contention that by virtue of 18 U.S.C. § 4205, read in conjunction with 18 U.S.C. § 4164, the Board of Parole has no jurisdiction to issue a violator’s warrant during the last 180 days of the mandatory release period. This view was accepted in Birch v. Anderson, 123 U.S.App.D.C. 153, 120 U.S.App.D.C. 248, 358 F.2d 520 (1965), and rejected in Schiffman v. Wilkinson, 216 F.2d 589 (9th Cir. 1954), certiorari denied, 348 U.S. 916, 75 S.Ct. 299, 99 L.Ed. 719. In view of the fact that the warrant in the present case was issued more than 180 days prior to the expiration of the maximum 1959 sentences and our holding that incarceration for the 1965 offense tolled the running of the period during which the warrant could be executed, we need not intimate any view on this conflict of authority. See Castillo v. United States, 391 F.2d 710, 711, note 3 (2d Cir. 1968). Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. GOVERNMENT OF the VIRGIN ISLANDS v. Beaumont GEREAU, Ishmael LaBeet, Warren Ballantine, Meral Smith, Raphael Joseph. Appeal of Ishmael LaBEET. No. 78-1386. United States Court of Appeals, Third Circuit. Argued Dec. 12, 1978. Decided Jan. 31, 1979. Victor G. Schneider, Charlotte Amalie, St. Thomas, V. I., for appellant. Ishmael Meyers, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., Mark L. Milligan, James F. Rutherford, Asst. U. S. Attys., Christiansted, St. Croix, V. I., for appellee. Before SEITZ, Chief Judge, WEIS and GARTH, Circuit Judges. OPINION OF THE COURT PER CURIAM. Appellant, Ishmael LaBeet, now known as Ishmail M. Ali, and four co-defendants, were convicted on eight counts of first degree murder, two counts of robbery and four counts of first degree assault on August 13, 1973, following a jury trial in the District Court of the Virgin Islands. Each defendant was sentenced by the court to eight consecutive terms of life imprisonment on the first degree murder counts; concurrent terms were imposed on the remaining counts. See Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); Government of Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975). On June 14, 1976, a timely motion for reconsideration of the eight consecutive life sentences was filed in the district court on appellant’s behalf. That motion, filed pursuant to Rule 35 of the Federal Rules of Criminal Procedure, 5 V.I.C. App. II, R. 35, was comprised of a challenge to the legality of appellant’s sentence and a plea for judicial leniency. The motion was denied by the district court in an opinion and order dated February 9, 1978. Ali’s appeal from that order presents only one issue for the consideration of this Court: “Whether the imposition of eight life sentences to be served consecutively constitutes cruel and unusual punishment, in violation of the eighth amendment to the Constitution of the United States.” Ali contends that his sentence constitutes cruel and unusual punishment because: (1) it is more excessive than other sentences that have been imposed for murder in the Virgin Islands; (2) it removes any possibility that he will become eligible for parole; (3) it is inherently cruel and severe; (4) it is disproportionate to the offense charged; (5) it is unnecessarily cruel in that the permissible aims of punishment could have been achieved as effectively by a less severe sentence; (6) it has had the effect of “denationalizing” Ali from his indigenous citizenship as a Virgin Islander; and (7) it was imposed arbitrarily and selectively to a member of an unpopular minority group. We do not find any of these contentions meritorious. I. Ali was sentenced by the district court in accordance with 14 V.I.C. § 923(a), which then provided: “Whoever commits murder in the first degree shall be imprisoned for life.” At that time, appellant’s eligibility for parole was defined by 5 V.I.C. § 4601, stating: “Every prisoner confined . . . for the term of his natural life, whose record of conduct shows that he has observed the rules of the institution in which he is confined, upon recommendation of the Warden, supported by the recommendation of a psychiatrist and/or psychologist, may be released on parole after serving 10 years of a life sentence . ; Provided, however, That the Board of Parole, subject to the approval of the Governor, in its discretion by at least a two-thirds affirmative vote of all its members, upon recommendation by the Warden, supported by the recommendation of a psychiatrist and/or psychologist, is authorized to fix an earlier eligibility date for the release of prisoners on parole. Because the district court determined that each of appellant’s sentences on the first degree murder counts was to run consecutively to the others, he will not become eligible for normal parole consideration until August 13, 2053. The district court’s decision to impose consecutive, rather than concurrent, terms of imprisonment upon Ali has created the alleged constitutional infirmities in his sentence. II. Two of appellant’s contentions with respect to the constitutionality of the sentence imposed upon him evoke the equal protection strain inherent in the eighth amendment’s prohibition of cruel and unusual punishments. See, e. g., Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 2735, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring) (“discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments”). Ali claims that his sentence was imposed in a,, discriminatory fashion because it is more severe than other sentences that have been imposed for murder in the Virgin Islands and because it was imposed upon a group of young, black, native Virgin Islanders. With respect to these contentions he has called this Court’s attention to the favorable treatment afforded by the district court to a white, mainland American’s motion for reduction of a sentence imposed for second degree murder. The distinguishing features between appellant’s crimes and that of a man convicted of second degree murder for the killing of his wife’s lover adequately explains the district court’s disparate treatment of the two motions. The record is completely devoid of any proof that could even arguably support an equal protection claim. In the absence of any showing that Ali’s sentence was either illegal or unconstitutional, we have no power to review the sentence imposed. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Government of Virgin Islands v. Richardson, 498 F.2d 892, 894 (3d Cir. 1974). Ali contends that a sentence of eight consecutive life terms is an inherently cruel and severe punishment, analogous to torture. We do not find this analogy persuasive. He also contends that his punishment was cruel and unusual because it eliminated any possibility of his becoming eligible for parole, thereby eliminating any incentive for rehabilitation. The Supreme Court held in Schick v. Reed, 419 U.S. 256, 95 S.Ct. 379, 42 L.Ed.2d 430 (1974), that a no-parole condition attached by the President to the commutation, of a death sentence “is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; it does not offend the Constitution.” Id. 267, 95 S.Ct. at 385 (footnote omitted). Recently, the Sixth Circuit has applied Schick v. Reed in rejecting a claim that a Kentucky statute authorizing the imposition of life imprisonment without parole for rape is violative of the eighth amendment. See Moore v. Cowan, 560 F.2d 1298, 1302-03 (6th Cir. 1977), cert. denied, 435 U.S. 929, 98 S.Ct. 1500, 55 L.Ed.2d 525, 436 U.S. 960, 98 S.Ct. 3079, 57 L.Ed.2d 1127 (1978). The Supreme Court’s opinion in Schick v. Reed mandates the conclusion that it is not per se impermissible for the legislature to authorize, and a court to impose, a term of imprisonment that precludes the possibility that the defendant will be paroled. This Court also rejects Ali’s argument that the district court’s sentencing decision was inconsistent with the Virgin Islands Legislature’s decision to allow persons imprisoned for life to be considered for parole release after serving ten years. The Legislature has granted the district court discretion in specifying whether sentences are to be served concurrently or consecutively, and has not indicated that that discretion is to be limited by considerations of parole eligibility. See 5 V.I.C. § 3672 & Revision note. Moreover, the Legislature has revised the penalties for murder subsequent to Ali’s conviction. 14 V.I.C. § 923(a) now provides that: “Whoever commits murder in the first degree shall be imprisoned for the remainder of his natural life without parole.” Act of May 1, 1974, No. 3560, § 1 (V.I.C. Cum.Supp.1976). The same enactment amended the definition of parole eligibility in 5 V.I.C. § 4601 accordingly. We note as well, that although appellant has characterized his sentence as one eliminating any possibility that he will become eligible for parole, the district court pointed out that parole eligibility is not absolutely precluded in this case. The proviso to 5 V.I.C. § 4601, quoted above, allows the Board of Parole to fix an earlier eligibility date for parole release than would otherwise be specified by that section. Although that proviso would not apply to one convicted of first degree murder after the 1974 amendments to 14 V.I.C. § 923(a), it does provide some possibility of earlier release in appellant’s case. Ali contends that a punishment of life imprisonment without possibility of parole is disproportionate to his crimes. See Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion) (sentence of death is disproportionate to the crime of rape). The Supreme Court has held, however, that the death penalty may be imposed for the crime of deliberate murder. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). A fortiori, a sentence of eight consecutive life terms imposed for a conviction on eight counts of first degree murder is not “grossly out of proportion to the severity of the crime.” Coker, supra at 592, 97 S.Ct. at 2865. Appellant also contends that his sentence was disproportionate in that a lesser sentence may have served as effectively the permissible aims of punishment. The plurality in Coker did state that “a punishment' is ‘excessive’ and unconstitutional if it . makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering . .” Id. Despite Ali’s contention to the contrary, we believe that the sentence imposed in this case may serve more effectively the legitimate penal purpose of isolating the offender from society than would a sentence imposing eight concurrent life terms of imprisonment. Viewed in the context of the crimes for which appellant was convicted, we cannot say that the legislative authorization and judicial implementation of the sentence imposed in this case constituted “the purposeless and needless imposition of pain and suffering.” See generally Carmona v. Ward, 576 F.2d 405, 415-17 (2d Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 874, 59 L.Ed.2d 58 (1979). Finally, Ali contends that his incarceration in a penitentiary situated on the United States mainland constitutes cruel and unusual punishment in that it effects his “denationalization” as a Virgin Islander. See Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (denationalization as a punishment for wartime desertion is cruel and unusual punishment). Appellant has previously challenged the legitimacy of his transfer to a mainland penitentiary and the conditions of confinement there in requests for habeas corpus relief addressed to the District Court of the Virgin Islands and the United States District Court for the Northern District of Georgia. See Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978) (remanding case to the district court for further proceedings); United States ex rel. Gereau v. Henderson, 526 F.2d 889 (5th Cir. 1976). Without addressing the merits of the contentions raised by the appellant in his pending habeas action, we conclude that his transfer to a mainland prison for the service of his sentence did not constitute denationalization, and that his transfer alone did not amount to the imposition of cruel and unusual punishment proscribed by the eighth amendment. III. The judgment of the district court, denying appellant’s request for a reduction of sentence, will be affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
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. UNITED STATES CARTRIDGE CO. v. POWELL et al. No. 13663 United States Court of Appeals, Eighth Circuit. Oct. 26, 1950. t, , . „ . , ^ „„„ Rehearing Domed Nov. 20,1950. Opinion Modified Jan. 23, 1951. See 186 F.2d 611. R. H. McRoberts, Rhodes E. Cave and Marion S. Francis (of Bryan, Cave, McPheeters & McRoberts), all of St. Louis, Mo., for appellant. Thomas Bond, St. Louis, Mo., for appeljees_ William S. Tyson, Solicitor, Bessie Marg°Hn) Asst. Solicitor, and William A. Lowe and E- Gerald Lamboley, Attys., Dept, of Labor, all of Washington, D. C., and Reid Williams, Kansas City, Mo., amici curiae. Before GARDNER, Chief Judge, and SANBORN, WOODROUGH, THOMAS, JOHNSEN, RIDDICK and COLLET, Circuit Judges. COLLET, Circuit Judge. This cause is now before us on remand from the Supreme Court. It is an action brought by a group of 59 plaintiffs, who were employed during World War II at the St. Louis ordnance plant, to recover overtime compensation, liquidated damages, attorneys’ fees, and costs, under the Fair Labor Standards Act of 1938, as amend-ed, 2g U S C-A_ § 201 et seq. The trial ’ , , „ ¿ . . , , court found all of the issues -in favor of , . ,. „ , . . . , plaintiffs and entered a judgment aggregat. . r mg $246,251.44 (twice the amount of over-.. , . ,, , ,, , time claimed), plus $24,625 as attorneys’ , , , , fees and costs. The case was filed on May 4> ^ It was trigd in July> 1946j the trial ending on July 18. The trial court entered its judgment and findings of fact and conclusions of law on May 19, 1947. The Portal-to-Portal Act of 1947, 29 U.S.C. A. § 251 et seq., became effective on May 14, 1947. After the filing of the judgment in the trial court, the defendant filed a motion for a new trial, including in that motion a formal request to reopen the case to permit it to plead the defenses made available to it by the Portal-to-Portal Act and to offer evidence in support thereof, This motion was denied and the appeal followed. The case was first submitted at the May Term, 1948, to a court consisting of the customary number of three judges. At the time it was taken under submission ly that court the case of Kennedy v. Silas Mason Company, 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347, was pending in the Supreme Court. We held the case under submission awaiting the determination of the Kennedy-Silas Mason case because of the similarity of important issues in both cases. When the Kennedy-Silas Mason case was remanded by the Supreme Court without determination of those issues, but calling attention to a number of important considerations that should enter into the determination of the paramount question as to whether the Fair Labor Standards Act applied in these cases, because of the pendency of other cases before other judges of this court involving the same dominant question, we set aside the .original submission and set the cause for re-argument before this court en banc. We concluded that the Fair Labor Standards Act did not apply. United States Cartridge Co. v. R. M. Powell et al., 8 Cir., 174 F.2d 718. Having so determined that question, we did not pass upon the other questions presented by the defendant-appellant. The Supreme Court has changed our minds for us on the question of the application of the Fair Labor Standards Act and has remanded the case to us for determination of the other questions presented on appeal but not heretofore determined. Thereafter, the parties requested and were granted leave to file supplemental briefs. The last brief was filed on September 12, 1950. We proceed to the determination of the issues now before us. They are: (1) that the burden is upon the plaintiffs to prove the hours worked, i. e., plaintiffs must not only prove that they worked overtime, but that they must establish the hours of overtime worked; (2) that plaintiffs are required to plead and the burden is upon them to prove the coverage of the Portal-to-Portal Act of 1947, i. e., that the activities for which they seek to be compensated were compensable activities within the meaning of Section 2 of said Act, Title 29 U.S.C.A. § 252; (3) that the judgment of tbe District Court is excessive with resPect t0 eacb of tbe plaintiffs m that (a) is based uPon tbe erroneous finding and conclusion that the salaries paid to plaintifís were base Pa7 for a 4°-bcmr week instead of a variable or 48-hour work week; (b) hecause it includes in the computation of hours worked _ a one-half hour lunch period, and (c) includes as compensable, time Prior t0 the beginning of and follow-ing the ending of plaintiffs’ regular work-'ing shifts; (4) that plaintiffs and each of thcm were exempt from the provisions of the Fair Labor Standards Act by reason of Section 13(a) (1) of that Act, Title 29 U.S.C.A. § 213(a) (1); (5) that the claims °f certain of the plaintiffs with respect to overtime prior to April 5, 1943, are barred b7 the provisions of Sections 1012 and R-S.Mo.1939, Mo.R.S.A.; (6) that two of the plaintiffs have died and their actions have not been duly revived by their personal representatives; (7) that because the Portal-to-Portal Act became binding upon the Parties to this proceeding and upon tbe courts on May 14, 1947, and therefore the court erred in refusing to permit apPcllant t0 Present to * matters under the Portal-to-Portal Act of 1947, and that the judgment of the District Court violates and s oordrary t° the provisions of the Portal-to-Portal Act in that it includes with resPect t0 each °f the plaintiffs an allowance overtime compensation plus liquidated damages f°r (a) one-half hour lunch peri°ds> and (b) the time prior to the begerming of and following the ending of pUintiifs regular working shifts. Reference should be made to our previous opinion, 174 F.2d 718, and the Supreme Court’s opinion in this case, Powell et al. v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755, decided May 8, 1950, for a general statement of the facts relative to the type and nature of the action, Those facts will not be repeated here, Many additional facts necessary to art understanding of the now to be determined issues will' be stated in connection with the determination of each of those issues, j To sustain the plaintiffs’ burden to prove the hours each of them worked and the amount of overtime worked, plaintiffs called for and were furnished prior to the trial a detailed statement of the hours which the defendant’s time record showed each of the plaintiffs had spent at the defendant’s plant. This record was put in ., , . . T-, „ ., ., . • , evidence by plaintiffs. From it the trial , ... ... , court made its computations upon which the judgment is based. There was a serious dispute concerning whether the plaintiffs should be compensated for all of the time which these records showed they had spent on the defendant’s premises. Involved in this dispute was the question of whether they were required to report in advance of the beginning of the regular shift. Also in dispute was the question of whether they were entitled to consider as time worked a 30-minute lunch period, The trial, court concluded from the evidence that plaintiffs were entitled to treat as time worked and to be compensated for all of the time shown on defendant’s record. That finding appears to have been based to a substantial extent at least upon a printed pamphlet issued by defendant and given to all employees, including these plaintiffs, wherein it was stated: “There will be eight hours in any working day, and forty hours will constitute a working week. To meet the schedule required of us by the National Defense Program, it will be necessary to employ three shifts on production operations. When production demands require a longer work day or longer work week, the company will pay the legal overtime rate as provided under the Walsh-Healy Act [41 U.S.C.A. § 35 et seq.] and the Fair Labor Standards Act. When three shifts are operating there will be rotation of first, second and third shifts every two weeks. A lunch peri0d will be allowed on each shift and be paid for by the company. That is, no deduction will be made for this lunch period.” (Italics supplied) «Payment of Overtime: . , , ,, ... . ., . lime and a half will be paid m ex- . . , , , % cess of eight hours per day or forty hours r J J ^er Wee an<^ a bulletin ■ issued to all the plaintiffs, statinS that the working hours for plaintiffs wouW begin thirty minutes prior to the beginning of the regular shift. There waf a^'so testimony by a number of the plaintiffs detailing their duties, which in-eluded duties to be performed prior to the beginning of their regular shift. From an examination of all of the evidence we are convinced that there was ample justification for the trial court holding that the time Prior t0 the beginning of the regular shifts should properly be treated as work-time> an<l that the 30-minute lunch per'oct was to be compensated for as working time. We are therefore not at liberty to set aside that finding, ^ Defendant’s second contention that it was encumbent upon the plaintiffs to plead affirmatively and to prove that the activities for which they sought compensation were compensable activities within the meaning of Section 2 of the Portal-to-Portal Act is answered in effect by what has been said relative to the foregoing contention of defendant. That is true he-cause the plaintiffs are entitled to recover if they can show that by the terms of their employment they were entitled to compensation for the time prior to the regular shift and for the lunch hour period. They undertook to do that. If they succeeded in doing so, then the Portal-to-Portal Act does not bar such compensation. The trial court found that they had done so and as stated, the finding was sufficiently supported by the record. Hence the requirement as to proof was met by the evidence. Since the time claimed before the beginning of the regular shifts and the 30-minute lunch periods are of the character which the Portal-to-Portal Act requires that there should be a contract expressly providing compensation for, or a custom or practice consistent with an intention that there be compensation for such time and not inconsistent with an existing contract, he-fore compensation may be recovered for such time, a formal compliance with the requirement of the Act would require that the conditions precedent to recovery, specified in the Act, be pleaded. Battaglia v. General Motors Corporation, 2 Cir., 169 F.2d 254; Bonner v. Elizabeth Arden, Inc., 2 Cir., 177 F.2d 703. Plaintiffs should have an opportunity on remand to make the appropriate amendment. 3 The appellant contends that the evidence shows that the basis of employment was a variable or at least a 48-hour week and that the trial court’s finding that plaintiffs were employed on the basis of a regular 40-hour week is erroneous. The amount of judgments for overtime was based on that finding, hence if the finding is erronecus the judgments are excessive. Inaddition to the statement contained in the pamphlet heretofore quoted, plaintiffs’ evidence was to the effect that although each safety engineer would he required to work six 8-hour shifts each week, yet the statement was made by the person employing them at the commencement of their employment that the basic work week was 40 hours. Furthermore, it appears from the tabulation of plaintiffs’ time and the amount received therefor, prepared by defendant and offered by plaintiffs in evidence, that when the working time for any of the plaintiffs dropped below 40 hours in one week, such person was docked for the time less than 40 hours that he worked that week, at the rate of pay calculated upon a 40-hour work week. It is true that there was a great deal of evidence in the record which tended to establish the conclusion that plaintiffs were employed on the basis of a variable or a 48-hour week. But, again, the evidence was contradictory and conflicting and we are not at liberty to say under those circumstances that the trial court’s finding was erroneous. 4 The next contention is that the plaintiffs were employed in a bona fide administrative capacity and therefore were exempt from the provisions of the Fair Labor Standards Act. The types of services which are exempt on this ground are defined in Section 541.2 of the Official Regulations of the Wage and Hour Administrator: «Administrative. The term ‘employee employed in a bona fide * * administrative * * * capacity’ in section 13 (a) (1) 0f the Act shall mean any employee “(A) who is compensated for his services on a salary or fee basis at a rate of not less than $200 per month (exclusive of i30ard) lodging, or other facilities), and (B) W who re£uIarly and directly assists an employee employed in a bona fide executive or administrative capacity (as such terms arc defined m these re£ulatlons)> where sndl asslstance is nonmanual in naturc and rcVdres the ^cise of discretlon and independent judgment; or “(2) who performs under only general supervision, responsible nonmanual office or field work, directly related to management policies or general business operations, along specialized or technical lines requiring special training, experience, or knowledge, and which requires the exercise of discretion and independent judgment * * * These plaintiffs were all safety employees. Each was compensated on a salary basis at a rate of not less than $200 per month. Each regularly and directly assisted the supervising personnel in the productive branch of defendant’s plant, Plaintiffs’ evidence tended to show that the safety employees or engineers had no right whatever to instruct individual employees as to their proper conduct except in cases of imminent emergency when it appeared that loss of life was likely, and then the engineer could only stop the operation and report the situation to a superior. Their evidence tended to show further that all authority to make changes in operating practices or equipment was lodged in other than the safety engineers; that those engineers had slight previous technical education or experience as safety engineers and were not consulted as to changes in practices except insofar as their reports containing suggestions and recommendations might be considered as such; that they conducted no classes of instruction on safety practices and only attended such meetings one hour each week. The duties of all of the plaintiffs were substantially the same. It appears from the evidence that they protested their classification over an extended period of time and these protests finally culminated in a mass meeting. The most cohesive description of the duties of the safety engineers as defined by the defendant is found in a so-called job description made in 1942 during the early stages of defendant’s operations before any controversy relative to classification arose, by an Occupational Analyst employed by defendant who had formerly been for four years with the Wage and Hour Division of the United States Department of Labor. Those duties were there described as being 30% of each man’s total working time devoted to regular inspection of all property in his area for the purpose of eliminatijng safety hazards of all kinds; 40% devoted to checking manual movements of employees and pointing out unsafe practices to the supervisor; 5% to seeing that injured employees received first aid; 5% to recommending changes of additional safety devices and new types of equipment; 5% to recommending changes calculated to decrease work hazards in accordance with the engineer’s knowledge of safe practices; 8% to the submission of written reports of every accident and suggesting preventive measures; 3% to making reports recommending general safety procedures not connected with a particular accident; 2% to holding meetings of unit and safety committees promoting the adherence to safety regulations through employee cooperation; and 2% to the instruction of groups of employees in proper use of safety equipment with the approval of the department concerned. From all of the evidence on the subject, it is not unlikely that we sitting as a trial court might have reached a different conclusion than the trial court reached on the propriety of the classification of these plaintiffs, but as we have repeatedly pointed out above and repeatedly held in reported cases, by the express direction of the Rules of Civil Procedure 28 U.S.C.A. we may not set aside a finding of fact of a trial court unless that finding is so lacking in evidentiary support as to be clearly erroneous. In this instance we find sufficient conflicting inferences which may be drawn from the evidence to preclude us from holding that the trial court’s finding was clearly erroneous. 5 It is next contended that the claims of certain of the plaintiffs with respect to overtime prior to April 5, 1943, are barred by the provisions of Section 1012 and 1015 of the Revised Statutes of Missouri, 1939, Mo.R.S.A. Section 1012 provides in general terms that civil actions can only be commenced within the period prescribed in following sections, with a proviso stating when the cause of action shall be deemed to have accrued. Hence, Section 1015 is the really material section, It reads as follows: “§ 1015. What within three years * * * ; second, an action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state.” This Statute of Limitation is not applicable to claims for compensation under the Fair Labor Standards Act or for the liquidated damages under that Act. And that is true because the liquidated damage provisions of the Fair Labor Standards Act have repeatedly been held not to be penalties or forfeitures, but are, as stated, “liquidated damages”. 6 The contention that there has not been a proper revival of the action by the personal representatives of two of the deceased plaintiffs need not be considered further than to point out that since for reasons which will hereafter be stated, this cause must be remanded, the trial court will be reinvested with complete authority to pass upon the application for and to order, if found appropriate, the revival of the cause as to these two parties. ^ The contention that the trial court should have taken cognizance of the Portal-to-Portal Act and should have permitted the defendant to reopen the case for the purpose of amending the pleadings to set out the defenses available under the new Act and to offer evidence m support of those defenses is well taken. The motion therefor should have been granted Plaintiffs contend that the trial court had , , „ , . , an opportunity from the affidavit that . .ji^i , , , ,, was filed m support of the defendants , . , i . motion and m opposition to it by plaintiffs, to pass upon the merits of the question of whether the defendant had any defense under Sections 9 and 11 of the Portal-to-Portal Act, and that by the denial of the motion those questions were determined by the court adversely to the defendant. That could not be. The Portal-to-Portal Act was not in effect at the time this case was tried. It could therefore not have been pleaded at that time and, not having been pleaded, any issues made possible by the Portal-to-Portal Act could not formally have been tendered to the trial court and no evidence peculiar alone to those issues could have been properly admitted, absent the existence of the issues themselves. It is clear that the courts generally, including the Supreme Court, have adopted the judicial policy of permitting the interposition of the defenses made available by the Portal-to Portal Act before the final determination of a cause, in some instances even after the entry of a final judgment on appeal, Alaska Juneau Gold Mining Co. v. Robertson, 331 U.S. 793, 67 S.Ct. 1728, 91 L.Ed. 1821; 149 Madison Avenue Corp. v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432; Robertson v. Alaska Juneau Gold Mining Co., 9 Cir., 157 F.2d 876; St.Johns River Shipbuilding Co. v. Adams, 5 Cir., 164 F.2d 1012; Boerkoel v. Hayes Mfg. Corp., D.C., 76 F.Supp. 771. The propriety 0f this judicial policy has not been challenged. This case furnishes an excellent illustration of the necessity, in the interest Qf substantial justice, of following that policy. If the facts as stated by defendant in its affidavit, filed in support of its motion for permission to interpose the defenses under Sections 9 and 11 of the Portal-to-Portal Act were true, or, if we were passjng Upon the factual issues under Secüon n of the p0rtai_t0_p0rtal Act upon tbg record made before the trial court of whether the dassification of plaintiffs was in good faith and with reasonabie grounds for believing tliat it was not in vk)lation of tbe Fair Labor Staildards Act> we would bg ^ed t0 hold that on the , , . ,, . , , , , record before us that the trial court abused i--i.ii its discretion m allowing liquidated dam- , . ,,,,,, ages upon the premise that the defendants & . \ f . actlon m ^assifymg the plaintiffs had not been shown t0 be in Sood faith wlth rca" sonable grounds to believe that the clas®fication was not in violation of the Fair Labor Standards Act. But, because as noted, that issue was not made under the pleadings and we are not free to- treat as a formal issue disputed facts set up in the affidavits filed on the motion, we cannot and do not pass upon that question now. Nor was the trial court authorized or justified to treat those affidavits as presenting these issues. And if the argumeat should be advanced that the trial court might have treated the pleadings as amended, for the purpose of presenting these defenses, then the situation is no better, because under those circumstances it was impossible to say with positiveness that there was no further evidence available to defendant under these defenses than had been incorporated in the record, and, furthermore, if that was all the evidence available on the subject, as already noted, a holding that the defendant had not , established the defense under Section 11 which would relieve it of the liquidated damages would have been clearly erro-neous. For that reason the cause must be reversed and remanded with directions to the trial court to permit the amendment of the pleadings and to consider any matters presented to it under the Portal-to-Portal Act. In view of the disposition made of this appeal, no attorney fees on account of this appeal should or need be allowed at this time. Reversed and remanded. . “All safety engineers: Effective Friday, June 5, 1942, the working hours for inspectors will be as follows: “A Shift, 7:30 A.M. to 4:00 P.M. B Shift, 3:30 A.M. to 12:00 M. O Shift, 11:30 — No, sir, I haven’t been inserting those A.M.’s and P.M.’s. It isn’t on the exhibit, but take it this way: “A Shift, 7:30-4:00 P.M. B Shift, 3:30-12:00 P.M. C Shift, 11:30-8:00 A.M. “The time dock will be punched within fifteen minutes before the hour. In order that he may take advantage of the half-hour lap-over in shift time the following procedure for inspectors shall be used: “1. Punch time dock 2. Report to Chief Inspector’s office 3. Check files 4. Obtain note-book and necessary material. 5. Report to unit and contact inspeetor from preceding shift. S. L. Hartling.” Question: Are there two issues in the case? A. no B. yes Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. T.J. HAYES, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Corrections, Appellee. No. 86-1690. United States Court of Appeals, Eighth Circuit. Submitted Jan. 13, 1987. Decided July 22, 1988. Jeff Rosenzweig, Little Rock, Ark., for appellant. Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., for appellee. Before ROSS and WOLLMAN, Circuit Judges, BRIGHT, Senior Circuit Judge. The Honorable Donald R. Ross was an active judge of the Eighth Circuit on the date this case was submitted, but took senior status on June 13, 1987, before the decision was filed. WOLLMAN, Circuit Judge. Appellant, T.J. Hayes, was found guilty by a jury of capital felony murder, Ark. Stat.Ann. § 41-1501 (Repl.1977). The jury recommended a sentence of death by electrocution. The conviction was reversed by the Arkansas Supreme Court, and a new trial was ordered on the ground that the trial court should have allowed defense counsel access to records of Hayes’ court-ordered psychiatric and psychological examinations. Hayes v. State, 274 Ark. 440, 625 S.W.2d 498 (1981). Hayes was retried and again was found guilty of capital murder and sentenced to death. The Arkansas Supreme Court upheld the conviction and death sentence, Hayes v. State, 278 Ark. 211, 645 S.W.2d 662, cert. denied, 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983), and subsequently denied his petition for a stay of execution and for post-conviction relief. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984). Hayes then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. After an evidentiary hearing, the district court held that Hayes’ petition should be denied. We affirm. At about 2:30 on the afternoon of July 16, 1979, Hayes and his girlfriend, Catherine Carter, both black, departed from Ms. Carter’s parents’ home in a Yellow Cab, bearing the number 11, driven by J.W. Lunsford, a white male. A security guard for the Arkansas Department of Corrections noticed Yellow Cab number 11, driven by a white male and carrying two black passengers, one male and one female, in the backseat, proceeding slowly around a curve on Princeton Pike that afternoon. Approximately one hour later, this witness observed Yellow Cab number 11, this time occupied only by the driver, the black male the witness had earlier seen in the backseat of the cab, returning from the direction it had earlier proceeded on Princeton Pike. The witness made an in-court identification of Hayes as the driver on the return trip. At about 4:15 on the afternoon of July 16, 1979, Hayes walked into the local county jail and stated that he thought he had just killed his girlfriend. Hayes then led two officers to the place where the bodies were located and to the place where he had hidden the cab. At about 7:30 that evening, after being informed once again of his Miranda rights, Hayes signed a waiver form and made a statement to the officers. Hayes told the officers that he had directed the cabdriver to drive to a location on Princeton Pike. Once there, Hayes and Ms. Carter got out of the cab. Hayes then brandished a revolver and told Lunsford to go back to town. Lunsford, however, advanced toward Hayes in an apparent attempt to disarm him. Hayes then shot Lunsford twice, killing him. The first shot struck Lunsford in the temple; the second entered behind his left ear. Hayes then broke a window in an abandoned house on the property. He and Ms. Carter then entered the house. Inside, Ms. Carter told Hayes that she would not be going out with him anymore because she had found someone else that she was interested in, whereupon Hayes shot Ms. Carter twice, killing her. After first attempting to burn Ms. Carter’s body by setting fire to her clothing and a window curtain, Hayes then left the scene in the cab, which he later hid in a wooded area. I. Hayes’ arrest for the two murders on July 16, 1979, triggered the speedy trial provisions of Ark.R.Crim.P. 28.1(b) and 28.-2(a) (Repl.1977). At the time of Hayes’ arrest, Rule 28.1(b) provided: Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. Rule 28.2(a) provides: The time for trial shall commence running, without demand by the defendant, from the following dates: (a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest. Rule 28.1 was known as the “terms of court” rule. According to Rule 28.1(a), defendants not incarcerated pending trial were to be tried within three terms of court, excluding periods of necessary delay and the term in which the arrest occurred. See Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). Incarcerated persons were subject to a special shorter two terms of court rule. See Ark.R.Crim.P. 28.1(a) (Repl.1977). Under Rule 28.2(a), the time for trial began running for Hayes at the time of his arrest. On July 1, 1980, while Hayes was awaiting trial, new speedy trial rules promulgated by the Arkansas Supreme Court took effect. These rules changed the method of calculation from terms of court to months — eighteen months normally, and twelve months for persons incarcerated in the penitentiary. See Ark.R.Crim.P. 28.1. The provision relevant to this case reads as follows: Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3. Ark.R.Crim.P. 28.1(b). The period of time from Hayes’ arrest to the time of his trial amounted to approximately eighteen months and three weeks. There were between three to five months of excluded periods. Consequently, Hayes was tried within the time allotted under the “terms of court” approach, but not within the time required under the speedy trial rules. When the new rules were promulgated, Arkansas Supreme Court stated in a per curiam order: The time for trial of all defendants that has commenced to run pursuant to Rule 28.2 prior to July 1, 1980, shall continue to be governed by Article VIII as it existed prior to this amendment, but the time for trial of all defendants that commences to run pursuant to Rule 28.2 (not changed by this amendment) on July 1, 1980, or thereafter, shall be governed by this amendment of Article VIII * * . In re Rules of Criminal Procedure, 269 Ark. 988 (1980) (per curiam). Judging by the plain language of the order, it seems clear that the new speedy trial rules were intended to be inapplicable to defendants such as Hayes, whose time for trial had already begun to run. Hayes argues, however, that the Arkansas Supreme Court’s subsequent decision in Jennings v. State, 276 Ark. 217, 633 S.W. 2d 373, cert. denied, 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982), stands for the proposition that the new rules are to be applied to all trials occurring after July 1, 1980. Hayes contends that the failure of the Arkansas courts to apply the so-called plain language of Jennings to his case was a violation of his rights of due process and equal protection. We do not agree. It is true that the court in Jennings stated that the speedy trial rules could “be validly applied to all criminal trials commencing on or after July 1, 1980.” 633 S.W.2d at 374. Reading this language out of context, it might appear that the Arkansas Supreme Court actually meant to say that the new speedy trial rules should apply to defendants whose first trial was held after July 1, 1980. There was no mention in Jennings, however, that the Arkansas Supreme Court intended to overrule its per curiam order, and we see no reason why the Jennings case should be interpreted as if it did. The narrow holding of Jennings is that the new speedy trial rules are to be applied to all criminal trials in which the arrest occurred on or after July 1, 1980. Common sense dictates that the Jennings case should be read to stand for that proposition, and not for the broad holding that Hayes suggests. We conclude, therefore, that the application of the term of courts rule to Hayes instead of the new speedy trial rules was not a violation of Hayes’ due process or equal protection rights. II. Hayes contends that he was denied his due process rights during the penalty phase of his trial when the jury imposed the death sentence based upon a finding of a single aggravating circumstance. He argues that the statute, Ark.Stat.Ann. § 41-1302 (Repl.1977), requires proof of more than one aggravating circumstance. Though the statute refers to “aggravating circumstances,” the Arkansas Supreme Court held in Hayes’ post-conviction relief appeal that the statute “requires only that the jury unanimously find at least one of the aggravating circumstances set forth in § 41-1302 to exist before it can impose the death penalty.” Hayes v. State, 280 Ark. at 5094, 660 S.W.2d at 654. The court based its determination on Ark.Stat.Ann. § 1-201 (Repl.1977), which states that “[w]henever, in any statute, words importing the plural number are used in describing or referring to any matter, parties or persons, any single matter, party or person shall be deemed to be included, although distributive words may not be used.” The interpretation of state law is a matter for the state courts, and there is nothing in the Arkansas Supreme Court’s ruling on this issue that gives rise to a due process violation. III. Hayes contends that he was penalized for exercising his right to trial and for his inability to consummate an intended plea of guilty. Prior to trial, the prosecution had offered on at least two occasions to permit a sentence of life without parole in return for a plea of guilty. No agreement was ever consummated. Hayes now argues that because the prosecution sought the death penalty at trial after a previous offer of life without parole, he was penalized for exercising his right to trial. We see no reason, however, why the prosecution cannot seek a higher sentence if a plea offer is not accepted — no matter whether the punishment ultimately sought is the death penalty or some lesser sentence. Cf. Ricketts v. Adamson, — U.S. -, 107 S.Ct. 2680, 2685-87, 97 L.Ed.2d 1 (1987) (state not foreclosed from reinstating first-degree murder charge after defendant failed to fulfill plea bargain resulting in second-degree murder charge). Hayes also submits that he was penalized for his inability to consummate a guilty plea. He appears to suggest that the trial judge should have done more to ensure that the plea agreement was consummated. As we read the record, however, the trial court stood ready to accept Hayes’ guilty plea. It was only after Hayes manifested ambivalence about pleading guilty that the trial judge stated that he would not accept a guilty plea that was less than voluntarily tendered and suggested to Hayes that he might want to reconsider his decision to forego a jury trial. Hayes has not established that his decision to proceed to trial was not voluntarily made. IV. Hayes alleges that the district court erred in failing to grant him a new trial or, alternatively, a new sentencing hearing as a result of his trial counsel’s ineffective performance at various stages of the trial. The test for determining effective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the Court stated that “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. at 2064. More specifically, the Court stated that in order to establish ineffectiveness of counsel, a defendant must prove two things. First, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. Second, the defendant must also establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A. Hayes first contends that his attorney was ineffective for not requesting a jury instruction on voluntary intoxication as a defense. He asserts that such an instruction would have been appropriate in light of the evidence presented at trial and in view of Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978), which recognizes self-induced intoxication as a defense if it causes the defendant to be incapable of forming the intent necessary for the crime. We review this claim of alleged ineffectiveness in the light of the fact that the evidence of Hayes’ intoxication on the day in question was minimal at best. Hayes told the police that he had been drinking all day, having started drinking at 8:30 on the morning of July 16. The only evidence to support this statement was the testimony of Hayes’ sister, who testified that she had seen Hayes drinking a bottle of Chámpale at about 1:30 on the afternoon of July 16. Ms. Carter’s parents, however, testified that Hayes did not appear to be intoxicated when he left their home with Ms. Carter in the cab that afternoon. Indeed, they both testified that they detected no odor of alcohol on his breath. One of Hayes’ cousins testified that Hayes did not appear to be intoxicated when she saw him at his parents’ home during the lunch hour on July 16. The several officers who questioned Hayes and accompanied him to the scene of the killings all testified that they detected no odor of alcohol on Hayes’ breath and that he did not appear to be intoxicated. Hayes’ slowness in responding to questioning did prompt one of the officers to ask him if he had been drinking, but other than Hayes’ affirmative answer to that question there was no outward manifestation by way of odor of alcohol, slurred speech, or staggering gait to so indicate. In a word, then, there was minimal evidence to support the giving of a voluntary intoxication instruction. Although defense counsel did not offer or request a specific instruction on the defense of voluntary intoxication, the issue of voluntary intoxication was in fact presented to the jury. Hayes’ attorney presented evidence on the issue of Hayes’ state of mind on the day of the crime (including evidence of Hayes’ alleged intoxication); and in his closing argument he argued the issue of Hayes’ intoxication and state of confusion. As the district court recognized, trial counsel argued voluntary intoxication as fully as if the instruction had been given. Furthermore, the jury instructions that were given on specific intent, premeditation, and the State’s burden of proof did not in any way negate the legitimacy of counsel’s argument. Instead, such instructions made his argument both relevant and proper. We therefore find that Hayes has failed to show that there is a reasonable probability that the outcome would have been different if a specific instruction on voluntary intoxication had been given. B. Hayes asserts that he was denied the effective assistance of counsel during jury voir dire in that his trial counsel (1) should have made a motion for sequestered voir dire, (2) should have engaged in more extensive questioning of the prospective jurors after his peremptory challenges had been exhausted, and (3) should have objected when a prospective juror announced in the presence of the other prospective jurors that he had been a spectator at Hayes’ first trial. We agree with the district court, however, that defense counsel’s handling of the voir dire represented an exercise of judgment that did not constitute ineffective assistance of counsel and that Hayes has not established that he suffered any prejudice as a result of counsel’s performance during voir dire. C. Hayes also alleges that his counsel was ineffective for failing to object in all but one instance to certain remarks made by the prosecuting attorney during opening and closing arguments at the guilt and penalty phases of the trial. Hayes points to several instances where the prosecution made references as to the character and situation of the victims. In his opening remarks, the prosecutor referred to the victims by stating: Their voices won’t be heard with the exception of the fact that Mr. Robinson and I will be presenting our case, and hopefully their voices will be heard through our witnesses. But in the final analysis you will be their voices. He went on to state: There is just one other point that I want to bring up. A lot of times in the summer time there is an awfully pretty sunset, awfully pretty. These two people never saw it, they never saw it and never will. In closing argument in the guilt phase, the prosecutor referred to the victims as follows: That was Mr. Lunsford’s first day on the job. Brand new. First day on the job trying to support his family, and it ends so abruptly and horribly for him. First day on the job, and look what happens. Catherine Carter, who spent three years at the Pine Bluff Nursing Home, helping people, caring about people, loving, supporting them. And she gets a better job and she moves up to help her mother and her father and her 14-year-old son who is going to graduate from high school next year who doesn’t have a mother now and hasn’t had in two and a half years — almost three years. She gets that better job and been [sic] working there months, and look how it ends for her. In his closing argument at the guilt phase, addressing certain of the jurors by name, the prosecutor stated: Put yourself in [Catherine Carter’s] shoes. Think about it when you get in the jury room. Think about it Mrs. Scott, you’ve got four children. [Catherine Carter’s mother] — she only has four children. Her baby daughter is gone. Think about it Mrs. Burns when you get back in the jury room of the pain that [Catherine Carter] must have felt and the agony and the terror and the horror because she’s got blood over her; she’s partially clothed — all of her clothing comes off. She’s humiliated standing in front of this man that she thought cared about her and she probably cared about, and she’s bleeding all over the place. Also during closing argument at the guilt phase, the prosecutor at one point turned from the lectern and pointed at Hayes. Hayes then spontaneously exclaimed, “Get your finger out of my face.” The prosecutor in turn referred to that exclamation as an example of Hayes’ violent tendencies. Hayes’ attorney objected, but obtained no ruling from the court and chose not to pursue the matter further. During his rebuttal argument at the penalty phase, the prosecutor made references to portions of the Bible that suggested the propriety of putting a person to death for killing another, this in apparent response to that portion of defense counsel’s argument in which he quoted the “Forgive us our trespasses” language of the Lord’s Prayer. Although we do not condone the prosecutor’s remarks, we nevertheless conclude that the failure of Hayes’ trial counsel to object to these arguments did not constitute ineffective assistance of counsel under the Strickland standard. At the hearing below, Hayes’ trial counsel testified that he had made a considered decision not to object during the prosecutor’s opening and closing remarks in the hope that by doing so he could establish some sort of relationship with the jury. Counsel believed that any objection in open court during argument might have prejudiced the jury against both his client and himself. We agree with the district court that this was not an unreasonable decision on counsel’s part. We also conclude that Hayes has not demonstrated that there is a reasonable probability that, but for counsel’s failure to object to these remarks, the result of the guilt or penalty phases of the proceeding would have been different. Hayes also contends that the prosecutor’s remarks were manipulative and therefore constituted reversible error under the Court’s reasoning in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). In Darden, the Court stated that “[t]he relevant question is whether the prosecutor’s comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Id. 106 S.Ct. at 2472 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). Our- review of the record reveals that there was no manipulation or misstatement of the evidence by the prosecution, nor did the statements “implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. Moreover, the prosecutor’s remarks were not such that they tended to diminish the jury’s view of their responsibility at trial, as occurred in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Finally, the jury was instructed by the trial court that the opening and closing remarks were not to be considered as evidence, and the overwhelming nature of the evidence at the guilt phase “reduced the likelihood that the jury’s decision was influenced by argument.” Darden, 106 S.Ct. at 2472-73. Consequently, we cannot say that the prosecutor’s statements infected the trial with such a degree of unfairness as to result in a denial of due process. In reaching our decision on this issue, we have considered the Supreme Court’s recent decision in Booth v. Maryland, — U.S. -, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). There, the Court held unconstitutional a state statute that required that the jury be informed of the effect the killing has had on the victim’s family — a so-called victim impact statement — either by means of in-court testimony from family members or by reading to the jury the victim impact statement. In Booth’s case, the latter procedure was followed. The Court held that the impact the killing has had on the victim’s family is not a proper sentencing consideration in a capital case. [T]he formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant. * * The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence clearly is inconsistent with the reasoned decisionmaking we require in capital cases. Id. 107 S.Ct. at 2536 (footnote omitted). We conclude that the holding in Booth does not require a reversal in the present case. Here, the prosecutor’s comments did not constitute a state-sanctioned submission of victim impact testimony as a part of the state’s case. As stated above, the jury was instructed that the arguments of counsel did not constitute evidence. Thus the consideration that formed the basis of the Court’s holding in Booth — the state-imposed requirement that the jury consider the impact of the crime on the victim’s family — was absent. Beyond that fundamental distinction between Booth and this case, we note that however objectionable the prosecutor’s references may have been, they did not approach in length or detail the victim impact statement in Booth. See id. 107 S.Ct. at 2536 (Appendix to Opinion of the Court). Accordingly, we hold that Booth does not mandate reversal of Hayes’ conviction on the basis of the prosecutor’s references to the suffering and loss experienced by the victims and their families as a result of the killings. D. Hayes contends that this court’s decision in Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986), requires reversal of his death sentence based upon counsel’s failure to introduce mitigation evidence. We do not agree. In Woodard, defense counsel failed to request a jury instruction on the newly-enacted statutory mitigating circumstance of lack of a prior history of significant criminal activity and failed to insure that the checklist of aggravating and mitigating circumstances submitted to the jury included this factor as a possible mitigating circumstance. Id. at 157. The court concluded that counsel’s failure to seek the inclusion of this mitigating circumstance fell below the threshold of reasonably competent assistance inasmuch as finding of a mitigating circumstance should have been an important objective in Woodard’s case. Id. Because the court was unable to conceive of any possible tactical reason for counsel’s failure to make the request, the death sentence was set aside as constitutionally invalid. Id. We conclude that Woodard is inapplicable to the facts before us. First, the checklist that was submitted to the jury included the following mitigating circumstances: 1. The capital murder was committed while T.J. Hayes was under extreme mental or emotional disturbance. 3. The capital murder was committed while the capacity of T.J. Hayes to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication or drug abuse. In his argument to the jury in the penalty phase, defense counsel referred to the testimony the jury had heard regarding Hayes’ treatment for alcoholism and asked that the jury consider this as a mitigating circumstance, specifically referring to paragraph three of the checklist set forth above. Second, as set forth below, we agree with the trial court that defense counsel made a reasonable decision in concluding that the introduction of the medical and psychological reports that Hayes contends constituted mitigating evidence would have harmed Hayes more than they would have helped him. 1. At the outset of the penalty phase of the trial, the state introduced certified copies of judgments of conviction showing that on October 6, 1972, Hayes had pleaded guilty to three felony charges: two charges of Shooting At With Intent To Kill Or Wound, and one charge of Second Degree Murder (reduced from First Degree Murder). The state then rested. When asked by the trial court whether he wished to present evidence of mitigating circumstances, defense counsel replied in the affirmative and attempted to call Hayes’ sister to the stand, whereupon there was a pause in the proceedings while defense counsel conferred with Hayes at counsel table. Defense counsel then stated that he did not wish the witness to testify. There then followed an in-chambers conference at which the following record was made: [DEFENSE COUNSEL]: For the record, during the aggravating and mitigating phase of the trial I did attempt to call the defendant’s sister, Rebertha Hilton, to the stand to testify, and the defendant requested that I not do so there in open Court. THE COURT: The Court will confirm that as a fact. As a matter of fact the witness was called and did take the stand, and the defendant very forcefully demanded that she be not permitted to testify. Upon returning to the courtroom, defense counsel stated that he had no other evidence of mitigating circumstances that he wished to present. We conclude that defense counsel should not be faulted for honoring Hayes’ desire that his sister not be called to testify at the penalty phase. Defense counsel testified at the habeas corpus hearing that Hayes had made known to him prior to trial that he did not want any family members called to testify on his behalf. As indicated above, Hayes forcefully renewed this wish when his sister was called to the stand at the penalty phase. Defense counsel testified that he believed that Hayes was competent to make this decision. Indeed, counsel mentioned on more than one occasion during the hearing that Hayes had been a very difficult, demanding, authoritative client, one who had told counsel what he wanted done on his behalf. 2. Defense counsel called two staff members of the Southeast Arkansas Mental Health Center at the guilt phase of the trial. One of these witnesses testified that Hayes had been referred for counseling by his probation officer in October of 1978 and that Hayes continued some individual counseling for alcohol abuse from October 16, 1978, to May 10, 1979. The other witness, Dr. William James, medical director at the Southeast Arkansas Mental Health Center, testified that he had had a brief interview with Hayes on May 30, 1979, following Hayes’ complaints of anxiety and insomnia. Hayes related to Dr. James that he had been experiencing a good deal of nervousness since breaking up with his girlfriend several days earlier. He also told Dr. Hayes that he had been worried about his elderly parents’ intellectual deterioration over the past several months. Hayes also stated that he had been having suicidal thoughts. Dr. James prescribed an antidepressant for Hayes after Hayes stated that he had not had a drink of alcohol in seven years. Hayes did not return for the followup appointment that Dr. James had scheduled with him for June 30, 1979. Following Dr. James’ testimony, defense counsel introduced as a joint exhibit a letter from a psychiatrist on the staff of the state Division of Mental Health Services containing the following diagnosis of Hayes’ physical and mental state: (1) without psychosis, (2) alcohol addiction, and (3) antisocial personality, severe. The medical and psychological reports available to defense counsel included a psychiatric evaluation by Dr. Gregory S. Kru-lin, a consulting psychiatrist at the Southeast Arkansas Mental Health Center. Dr. Krulin’s report states, among other things, that Hayes had told him that on the day of the killings a man, whom Hayes refused to identify, had told Hayes that he, the unidentified man, had killed Ms. Carter and the cabdriver. The unidentified man told Hayes that he, Hayes, was “to take the rap” and that he should turn himself in to the police, and that if Hayes did not take the rap his mother would be killed. Dr. Krulin’s report notes that Hayes had described his history of alcohol abuse. The report concludes with the notation that “[t]he patient also gives the history compatible with chronic alcohol abuse and adjustment reaction secondary to being in prison.” Other psychological reports in the record indicate that Hayes obtained a full scale IQ score of eighty-one on the Wechsler Adult Intelligence Scale, which falls within the dull-normal range of intellectual ability. One of the psychological evaluation reports states in part that: Personality testing suggests that Mr. Hayes is an impulsive individual who is capable of becoming aggressive. He seems easily upset; possibly with the slightest provocation. A low tolerance for frustration and stress may be exhibited in a history of aggressive behavior. Mr. Hayes’ behavior may also reflect his limited social skills. Yet, he likes to feel he is a source of power and influence; someone to be contended with. He is likely to have trouble analyzing situations and may misinterpret others’ intentions. He does not appear to empathize with people; being somewhat distant. The psychological and medical reports also refer to an incident in which Hayes had shot a man while Hayes was attempting to shoot at his, Hayes’, wife. 3. Defense counsel’s decision not to present as mitigating evidence Hayes’ medical and psychological reports presents a troublesome issue. When viewed in the light of Strickland v. Washington, Darden v. Wainwright, and Burger v. Kemp, — U.S. -, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), counsel’s decision not to submit those reports cannot be characterized as constituting ineffective assistance of counsel. Strickland teaches us that Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. * * * A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). The Court Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp2_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. There are two main issues in this case. The first issue is economic activity and regulation - misc economic regulation and benefits - federal consumer protection regulation (includes pure food and drug, false advertising). Your task is to determine the second issue in the case. 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". Ralph NADER v. John VOLPE, Secretary of Transportation, et al., Appellants. No. 71-1211. United States Court of Appeals, District of Columbia Circuit. Jan. 12, 1973. Mr. Walter H. Fleischer and Mrs. Greer S. Goldman, Attys., Dept, of Justice, were on the motion for appellants. Mr. Howard A. Heffron, Washington, D.C., was on the opposition to the motion for appellee. Before WRIGHT, TAMM and McCREE, Circuit Judges. Of the Sixth Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a) (1970). J. SKELLY WRIGHT, Circuit Judge: Appellee Nader brought an action in the District Court seeking a declaration that appellant Secretary of Transportation had exceeded his authority under the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 et seq. (1970), by granting Checker Motors Corporation a temporary exemption from the effective date of a Motor Vehicle Safety Standard promulgated by the Secretary. Appellants sought to have the action dismissed as moot since the exemption had been withdrawn and Checker had come into compliance prior to the hearing before the District Court. The District Court, relying on a post-hearing memorandum by the Government which stated that the Secretary continued to believe the Department of Transportation had authority to grant exemptions to a single manufacturer in situations not encompassed by 15 U.S.C. § 1410 (1970) and would, in appropriate circumstances, consider granting them, found the case not moot and reached the merits, holding that the Secretary had no power to grant exemptions except in those cases expressly authorized in Section 1410. See Nader v. Volpe, D.D.C., 320 F.Supp. 266 (1970). We affirmed the case by order dated September 28, 1972, noting our general agreement with the reasons stated by the District Court. Judge Tamm dissented from that order on the ground that the case should have been dismissed as moot. The Secretary has now moved to vacate our decision on the ground that on October 25, 1972, subsequent to our decision, Congress enacted Public Law No. 92-548, 86 Stat. 1159, amending 15 U.S.C. § 1410 (1970), thereby mooting the controversy and preventing the Government from seeking Supreme Court review of our judgment. We do not agree that Public Law No. 92-548 moots this case and accordingly deny the Secretary’s motion. Before discussing the effect of Public Law No. 92-548 on the mootness question, it would be helpful if we explain in greater detail our reason for initially deciding the case was not moot. Where a court is asked to adjudicate the legality of an agency order, it is not compelled to dismiss the case as moot whenever the order expires or is withdrawn. Consideration of important legal issues “ought not to be, as they might be, defeated, by short terms orders, capable of repetition, yet evading review * Southern Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). See also Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Jeannette Rankin Brigade v. Chief of the Capitol Police, 137 U.S.App.D.C. 155, 157, 421 F.2d 1090, 1092 (1969). In this case, the District Court properly found, on the basis of the Government’s own post-hearing memorandum, that temporary exemptions such as the one granted to Checker would be granted to Checker or to other manufacturers in the future, and that to dismiss cases challenging the legality of such exemptions simply because the exemption had been withdrawn or had expired would prevent courts from ever deciding the important question of whether or not the Secretary has authority to issue such exemptions. Enactment of Public Law No. 92-548 does not affect the mootness question. Although it authorizes the Secretary to grant temporary “hardship” exemptions to manufacturers such as Checker whose total motor vehicle production is less than 10,000 vehicles per year, there is no indication that the authorization is to have retroactive effect. Even assuming arguendo this law has retroactive effect, the exemption granted to Checker would not be authorized thereunder since the law authorizes the Secretary to grant exemptions only after certain procedures have been followed, and it is clear from the record in this case that these procedures were not followed when the Secretary granted the Checker exemption. The only other manner in which the present motion might affect the mootness question is if the motion constituted a retraction by the Secretary of his earlier position, expressed in the Government's post-hearing memorandum, that he continues to believe he has implied authority, in cases not encompassed by Section 1410, to grant a temporary exemption to a single manufacturer and/or to postpone the effective date of a safety standard for a single manufacturer. Having carefully read the Secretary’s present motion, we cannot find any such retraction. In light of these facts, the issue that the District Court decided still requires judicial resolution. And we think it clear, both under the version of Section 1410 initially before us and under Section 1410 as amended by Public Law No. 92-548, that the Secretary’s sole authority to exempt a manufacturer from a safety standard, even if that exemption takes the form of a postponement of the effective date of the safety standard for a single manufacturer, derives from Section 1410. There is no implied authority to grant exemptions or postponements in situations not encompassed by that section. Motion to vacate denied. Question: What is the second general issue in the case, other than economic activity and regulation - misc economic regulation and benefits - federal consumer protection regulation (includes pure food and drug, false advertising)? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_issue_1	07	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. UNITED STATES v. OJEDA RIOS et al. No. 89-61. Argued February 28, 1990 Decided April 30, 1990 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. O’Connor, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 267. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 268. Deputy Solicitor General Bryson argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, Harriet S. Shapiro, and Patty Merkamp Stemler. Richard A. Reeve, by appointment of the Court, 493 U. S. 1015, argued the cause for respondents. With him on the brief were Diane Polan, John R. Williams, Michael E. Deutsch, Ronald L. Kuby, and Margaret P. Levy.' Briefs of amici curiae urging affirmance were filed for the Asian-American Legal Defense and Education Fund et al. by David D. Cole; and for the National Association of Criminal Defense Lawyers by Robert Glass. Justice White delivered the opinion of the Court. This case arises under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), as amended, 18 U. S. C. §2510 et seq., which regulates the interception of wire, oral, and electronic communications. Except under extraordinary circumstances, see §2518(7), electronic surveillance may be conducted only pursuant to a court order. See §§ 2518(1) — (6). Section 2518(8)(a) requires that “[t]he contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device” and that recording “shall be done in such way as will protect the recording from editing or other alterations.” The section further provides that “[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.” Section 2518(8) (a) has an explicit exclusionary remedy for noncompliance with the sealing requirement, providing that “[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.” In this case, a series of court orders authorized electronic surveillance. The tapes later offered in evidence bore seals but the seals on the tapes at issue had not been immediately attached as required by the statute. The issue we address is whether § 2518(8)(a) requires suppression of those tapes. Respondents are members of a Puerto Rican organization known as Los Macheteros (the “machete wielders”). All have been charged with federal crimes relating to the robbery in 1983 of a Wells Fargo depot in Connecticut, a robbery which netted approximately $7 million. The Government first began investigating respondents in connection with a rocket attack on the United States Courthouse in Hato Rey, Puerto Rico. Effective April 27,1984, the Government obtained an order of electronic surveillance for the residence of Filiberto Ojeda Rios in Levittown, Puerto Rico, and for some public telephones near the residence. During its investigation of the rocket attack, the Government discovered evidence indicating that respondents had been involved in the Wells Fargo depot robbery. The Government obtained two extensions of the April 27 surveillance order, with the final extension expiring on July 23, 1984. The Government actually terminated surveillance at the Levittown residence and public telephones on July 9, 1984, when Ojeda Rios moved to an apartment in El Cortijo, a community adjacent to Levittown. On July 27, 1984, the Government obtained a new surveillance order covering Ojeda Rios’ El Cortijo residence. After extensions, that order expired on September 24, 1984. Another surveillance order authorizing surveillance of Ojeda Rios’ car, originally entered on May 11, 1984, was extended and finally expired on October 10, 1984. All tapes created during the surveillance of Ojeda Rios were sealed by the United States District Court for the District of Puerto Rico on October 13, 1984. As part of the Wells Fargo robbery investigation, the Government obtained a court order on November 1, 1984, authorizing it to wiretap a residence shared by Juan Segarra Palmer and Luz Berrios Berrios in Vega Baja, Puerto Rico. The District Court extended that authorization order each month for seven months, with the last extension expiring on May 30, 1985. The Government also obtained a court order authorizing it to wiretap two public telephones in Vega Baja, effective January 18, 1985. That order expired on February 17, 1985, and due to difficulties in finishing the affidavit necessary to obtain an extension, the Government did not apply for an extension until March 1, 1985. The District Court issued a new order on that date. The order was thereafter extended twice and finally expired on May 30, 1985. All tapes from the Vega Baja wiretaps were judicially sealed on June 15, 1985. After respondents were indicted for various offenses relating to the Wells Fargo depot robbery, they moved to suppress all evidence the Government had obtained as a result of electronic surveillance. Following a suppression hearing, the United States District Court for the District of Connecticut refused to suppress the El Cortijo and Vega Baja residence tapes, but suppressed the Levittown tapes and the public telephone tapes made in Vega Baja. 695 F. Supp. 649 (1988). In doing so, the District Court determined that the July 27, 1984, order authorizing the wiretap at the El Cortijo residence was not an extension of the April 27, 1984, order authorizing the Levittown wiretaps and, therefore, the obligation to seal the Levittown tapes arose when the last extension of the April 27 order expired on July 23, 1984. The court calculated that there had been at least an 82-day delay in sealing the Levittown tapes. With respect to the public telephone wiretaps in Vega Baja, the court determined that the March 1, 1985, order could not be considered an extension of the initial January 18, 1985, order — which had expired on February 17, 1985 — because of the 12-day delay in seeking reauthorization of the January 18 order and the Government’s failure to satisfactorily explain that delay. The court calculated that the sealing of the tapes on June 15, 1985, occurred 118 days after the order which authorized the surveillance had expired. Without determining the authenticity of these two sets of tapes, the District Court suppressed them on the basis of the delay alone. The United States Court of Appeals for the Second Circuit affirmed the suppression of the tapes, 875 F. 2d 17 (1989), rejecting the Government’s explanation for the sealing delays. Because the scope and role of the sealing provision of Title III has generated disagreement in the lower courts, we granted certiorari, 493 U. S. 889 (1989), and now vacate and remand. The Government first argues that because §2518(8)(a) states that as a prerequisite to admissibility, electronic surveillance tapes must either bear a seal or the Government must provide a “satisfactory explanation” for the “absence” of a seal, the “satisfactory explanation” requirement does not apply where the tapes to be offered in evidence actually bear a seal, regardless of when or why the seal was applied. This argument is unpersuasive. The narrow reading suggested by the Government is not a plausible interpretation of congressional intent when the terms and purpose of § 2518(8)(a) are considered as a whole. The section begins with the command that tapes shall be sealed “immediately” upon expiration of the underlying surveillance order and then, prior to the clause relied upon by the Government, provides that “the seal provided for by this subsection” (emphasis added) is a prerequisite to the admissibility of electronic surveillance tapes. The clear import of these provisions is that the seal required by § 2518(8)(a) is not just any seal but a seal that has been obtained immediately upon expiration of the underlying surveillance order. The “absence” the Government must satisfactorily explain encompasses not only the total absence of a seal but also the absence of a timely applied seal. Contrary to what is so plainly required by § 2518(8)(a), the Government would have us nullify the immediacy aspect of the sealing requirement. The primary thrust of § 2518(8)(a), see S. Rep. No. 1097, 90th Cong., 2d Sess., 105 (1968), and a congressional purpose embodied in Title III in general, see, e. g., United States v. Giordano, 416 U. S. 505, 515 (1974), is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance. The presence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded. It is clear to us that Congress viewed the sealing requirement as important precisely because it limits the Government’s opportunity to alter the recordings. The Government’s view of the statute would create the anomalous result that the prosecution could delay requesting a seal for months, perhaps even until a few days before trial, without risking a substantial penalty. Since it is likely that a district court would automatically seal the tapes, there would be no “absence” of a seal, in the sense suggested by the Government, and § 2518(8)(a) would not come into play, even though the tapes would have been exposed to alteration or editing for an extended period of time. Such a view of the statute ignores the purposes of the sealing provision and is too strained a reading of the statutory language to withstand scrutiny. Like every Court of Appeals that has considered the question, we conclude that § 2518(8) (a) applies to a delay in sealing, as well as to a complete failure to seal, tapes. The Government’s second contention is that even if § 2518 (8)(a)’s “satisfactory explanation” requirement applies to delays in sealing tapes, it is satisfied if the Government first explains why the delay occurred and then demonstrates that the tapes are authentic. This submission, however, also is not a sensible construction of the language of § 2518(8) (a) and would essentially nullify the function of the sealing requirement as a safeguard against tampering. The statute requires a satisfactory explanation, not just an explanation. It is difficult to imagine a situation in which the Government could not explain why it delayed in seeking to have tapes sealed. Even deliberate delay would be enough, so long as the Government could establish the integrity of the tapes; yet deliberate delay could hardly be called a satisfactory explanation. To hold that proof of nontampering is a substitute for a satisfactory explanation is foreclosed by the plain words of the sealing provision. It is true that offering to prove that tapes are authentic would be consistent with Congress’ concern about tampering, but even if we were confident that tampering could always be easily detected, we would not be at liberty to agree with the Government, for it is obvious that Congress had another view when it imposed the sealing safeguard. The Government contends that it has an incentive to seal tapes immediately because otherwise, even under its proposed test, it will face lengthy pretrial suppression hearings in which it must establish the authenticity of tape recorded conversations. This is no more than a statement that only rarely would there be a delay and does not answer the issue posed where there is a delay that is not satisfactorily explained. Furthermore, the incentive argument is suspect since timely sealing, as the Government concedes, Tr. of Oral Arg. 10-11, 22-23, does not foreclose a challenge to authenticity, which in any event would require lengthy proceedings. We conclude that the “satisfactory explanation” language in § 2518(8)(a) must be understood to require that the Government explain not only why a delay occurred but also why it is excusable. This approach surely is more consistent with the language and purpose of § 2518(8)(a). Finally, we must consider whether the Government established good cause for the sealing delays that occurred in this case. The Government contends in this Court that its delays were the result of a good-faith, objectively reasonable misunderstanding of the statutory term “extension. ” According to the Government, the attorney supervising the investigation and electronic surveillance of respondents believed that he was hot required to seek sealing of the tapes until there was a meaningful hiatus in the investigation as a whole. In arguing that this understanding of the law was objectively reasonable, the Government relies primarily on two Second Circuit cases interpreting the statutory term “extension.” In one case, the Second Circuit held that an electronic surveillance order that was entered at least 16 days after a prior order had expired was to be regarded as an “extension” within the meaning of § 2518 because it “was clearly part of the same investigation of the same individuals conducting the same criminal enterprise” as was being investigated under the prior order. United States v. Principie, 531 F. 2d 1132, 1142, and n. 14 (1976), cert. denied, 430 U. S. 905 (1977). In a subsequent case, again involving a gap between the expiration of an order and an “extension,” the court indicated that under the circumstances presented later orders could be deemed extensions of prior ones and stated that where an “intercept is of the same premises and involves substantially the same persons, an extension under these circumstances requires sealing only at the conclusion of the whole surveillance.” United States v. Scafidi, 564 F. 2d 633, 641 (1977), cert. denied, 436 U. S. 903 (1978). These cases do not establish that the Government’s asserted understanding of the law in this case was correct; indeed, the Second Circuit’s decision in this case indicates the contrary, but the cases do support the conclusion that the “extension” theory now pressed upon us was objectively reasonable at the time of the delays. Thus, we conclude that the excuse now advanced by the Government is objectively reasonable. In establishing a reasonable excuse for a sealing delay, the Government is not required to prove that a particular understanding of the law is correct but rather only that its interpretation was objectively reasonable at the time. To the extent the Second Circuit in this case required an absolutely correct interpretation of the law, we think it held the Government to too strict a standard. Nevertheless, we must remand this case for further proceedings. A “satisfactory explanation” within the meaning of § 2518(8)(a) cannot merely be a reasonable excuse for the delay presented at the appellate level. Rather, our review of the sufficiency of the Government’s explanation for a delay should be based on the evidence presented and submissions made in the District Court. Therein lies the problem in this ease. Whether the supervising attorney actually advanced the Government’s “extension” theory in the District Court is not clear. Compare App. 4-5 (no sealing required for an ongoing investigation until a “meaningful hiatus” occurred), and id., at 26-27 (same), with id., at 36 (separate orders viewed as extensions of an interrelated investigation), and id., at 40 (same). Thus, even though the misunderstanding now pressed by the Government was objectively reasonable, that explanation is not “satisfactory” within the meaning of the statute unless it was relied on at the suppression hearing to explain the sealing delays. Because the Second Circuit did not address this threshold question, the case must be remanded for a determination whether the Government’s explanation to the District Court substantially corresponds to the explanation it now advances. The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Title III also contains a general suppression remedy, not applicable in this case, that provides for suppression when electronic communications have been unlawfully intercepted, were intercepted pursuant to a court order that is facially invalid, or were not intercepted in conformity with the order of authorization. See 18 U. S. C. §2518(10). Section 2517(3) provides that “[a]ny person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.” Nothing in §2518(8)(a) itself clearly indicates whether district courts have any authority or discretion to deny a governmental request for sealing. The Government suggested at oral argument that district courts may have such authority but did not indicate that, if so, they have ever exercised it. Tr. of Oral Arg. 9. Respondents’ countered that under the statute district courts have a mandatory duty to seal tapes, regardless of the timing of the request. Id., at 36-37, 47. See, e. g., United States v. Gigante, 538 F. 2d 502, 506-507 (CA2 1976); United States v. Johnson, 225 U. S. App. D. C. 33, 42, 696 F. 2d 115, 124 (1982); United States v. Massino, 784 F. 2d 153, 156 (CA2 1986); United States v. Mora, 821 F. 2d 860, 864-865 (CA1 1987). It also is true that some Courts of Appeals have agreed with the Government in this respect. See, e. g., United States v. Falcone, 505 F. 2d 478, 484 (CA3 1974); United States v. Sklaroff, 506 F. 2d 837, 840-841 (CA5 1975); United States v. Cohen, 530 F. 2d 43, 46 (CA5 1976); United States v. Lawson, 545 F. 2d 557, 564 (CA7 1975); United States v. Diadone, 558 F. 2d 775, 780 (CA5 1977); McMillan v. United States, 558 F. 2d 877, 878-879 (CA8 1977); United States v. Angelini, 565 F. 2d 469, 471-473 (CA7 1977). As explained above, we read § 2518(8)(a) differently. 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:
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. HECK v. HUMPHREY et al. No. 93-6188. Argued April 18, 1994 Decided June 24, 1994 Scaua, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Thomas, and Ginsburg, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 490. Souter, J., filed an opinion concurring in the judgment, in which Blackmun, Stevens, and O’Connor, JJ., joined, post, p. 491. Charles Rothfeld argued the cause and filed briefs for petitioner. Matthew R. Gutwein argued the cause for respondents. With him on the brief were Pamela Carter, Attorney General of Indiana, and Arend J. Abel and Dana Childress-Jones, Deputy Attorneys General. A brief of amici curiae was filed for the State of Arizona et al. by Grant Woods, Attorney General of Arizona, Paul J. McMwrdie, and Linda L. Knowles, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Winston Bryant of Arkansas, Daniel E. Lwngren of California, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Chris Gorman of Kentucky, Michael C. Moore of Mississippi, Joseph T. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Lee Fisher of Ohio, T Travis Medlock of South Carolina, Mark W. Barnett of South Dakota, Dan Morales of Texas, Jan Graham of Utah, and Joseph B. Meyer of Wyoming. Justice Scalia delivered the opinion of the Court. This case presents the question whether a state prisoner may challenge the constitutionality of his conviction in a suit for damages under 42 U. S. C. § 1983. I Petitioner Roy Heck was convicted in Indiana state court of voluntary manslaughter for the killing of Rickie Heck, his wife, and is serving a 15-year sentence in an Indiana prison. While the appeal from his conviction was pending, petitioner, proceeding pro se, filed this suit in Federal District Court under 42 U. S. C. § 1983, naming as defendants respondents James Humphrey and Robert Ewbank, Dearborn County prosecutors, and Michael Krinoph, an investigator with the Indiana State Police. The complaint alleged that respondents, acting under color of state law, had engaged in an “unlawful, unreasonable, and arbitrary investigation” leading to petitioner’s arrest; “knowingly destroyed” evidence “which was exculpatory in nature and could have proved [petitioner’s] innocence”; and caused “an illegal and unlawful voice identification procedure” to be used at petitioner’s trial. App. 5-6. The complaint sought, among other things, compensatory and punitive monetary damages. It did not ask for injunctive relief, and petitioner has not sought release from custody in this action. The District Court dismissed the action without prejudice, because the issues it raised “directly implicate the legality of [petitioner’s] confinement,” id., at 13. While petitioner’s appeal to the Seventh Circuit was pending, the Indiana Supreme Court upheld his conviction and sentence on direct appeal, Heck v. State, 552 N. E. 2d 446, 449 (Ind. 1990); his first petition for a writ of habeas corpus in Federal District Court was dismissed because it contained unexhausted claims; and his second federal habeas petition was denied, and the denial affirmed by the Seventh Circuit. When the Seventh Circuit reached petitioner’s appeal from dismissal of his § 1983 complaint, it affirmed the judgment and approved the reasoning of the District Court: “If, regardless of the relief sought, the plaintiff [in a federal civil rights action] is challenging the legality of his conviction/ so that if he won his case the state would be obliged to release him even if he hadn’t sought that relief, the suit is classified as an application for habeas corpus and the plaintiff must exhaust his state remedies, on pain of dismissal if he fails to do so.” 997 F. 2d 355, 357 (1993). Heck filed a petition for certiorari, which we granted. 510 U. S. 1068 (1994). II This case lies at the intersection of the two most fertile sources of federal-court prisoner litigation — the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U. S. C. § 1983, and the federal habeas corpus statute, 28 U. S. C. § 2254. Both of these provide access to a federal forum for claims of unconstitutional treatment at the hands of state officials, but they differ in their scope and operation. In general, exhaustion of state remedies “is not a prerequisite to an action under § 1983,” Patsy v. Board of Regents of Fla., 457 U. S. 496, 501 (1982) (emphasis added), even an action by a state prisoner, id., at 509. The federal habeas corpus statute, by contrast, requires that state prisoners first seek redress in a state forum. See Rose v. Lundy, 455 U. S. 509 (1982). Preiser v. Rodriguez, 411 U. S. 475 (1973), considered the potential overlap between these two provisions, and held that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of §1983. Id., at 488-490. We emphasize that Preiser did not create an exception to the “no exhaustion” rule of §1983; it merely held that certain claims by state prisoners are not cognizable under that provision, and must be brought in habeas corpus proceedings, which do contain an exhaustion requirement. This case is clearly not covered by the holding of Preiser, for petitioner seeks not immediate or speedier release, but monetary damages, as to which he could not “have sought and obtained fully effective relief through federal habeas corpus proceedings.” Id., at 488. See also id., at 494; Allen v. McCurry, 449 U. S. 90, 104 (1980). In dictum, however, Preiser asserted that since a state prisoner seeking only damages “is attacking something other than the fact or length of... confinement, and... is seeking something other than immediate or more speedy release[,]... a damages action by a state prisoner could be brought under [§ 1983] in federal court without any requirement of prior exhaustion of state remedies.” 411 U. S., at 494. That statement may not be true, however, when establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction. In that situation, the claimant can be said to be “attacking ... the fact or length of .. confinement,” bringing the suit within the other dictum of Preiser: “Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983.” Id., at 490. In the last analysis, we think the dicta of Preiser to be an unreliable, if not an unintelligible, guide: that opinion had no cause to address, and did not carefully consider, the damages question before us today. Before addressing that question, we respond to petitioner’s contention that it has already been answered, in Wolff v. McDonnell, 418 U. S. 539 (1974). See Reply Brief for Petitioner 1. First of all, if Wolff had answered the question we would not have expressly reserved it 10 years later, as we did in Tower v. Glover, 467 U. S. 914 (1984). See id., at 923. And secondly, a careful reading of Wo Iff itself does not support the contention. Like Preiser, Wolff involved a challenge to the procedures used by state prison officials to deprive prisoners of good-time credits. The § 1983 complaint sought restoration of good-time credits as well as “damages for the deprivation of civil rights resulting from the use of the allegedly unconstitutional procedures.” Wolff, swpra, at 553. The Court said, after holding the claim for good-time credits to be foreclosed by Preiser, that the damages claim was nonetheless “properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions, including loss of good time,” 418 U. S., at 554. Petitioner contends that this language authorized the plaintiffs in Wolff to recover damages measured by the actual loss of good time. We think not. , In light of the earlier language characterizing the claim as one of “damages for the deprivation of civil rights,” rather than damages for the deprivation of good-time credits, we think this passage recognized a § 1983 claim for using the wrong procedures, not for reaching the wrong result (i. e., denying good-time credits). Nor is there any indication in the opinion, or any reason to believe, that using the wrong procedures necessarily vitiated the denial of good-time credits. Thus, the claim at issue in Wolff did not call into question the lawfulness of the plaintiff’s continuing confinement. See Fulford v. Klein, 529 F. 2d 377, 381 (1976), adhered to, 550 F. 2d 342 (CA5 1977) (en banc); Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 120-121, 145-146 (1988). Thus, the question posed by § 1983 damages claims that do call into question the lawfulness of conviction or confinement remains open. To answer that question correctly, we see no need to abandon, as the Seventh Circuit and those courts in agreement with it have done, our teaching that § 1983 contains no exhaustion requirement beyond what Congress has provided. Patsy, 457 U. S., at 501, 509. The issue with respect to monetary damages challenging conviction is not, it seems to us, exhaustion; but rather, the same as the issue was with respect to injunctive relief challenging conviction in Preiser: whether the claim is cognizable under § 1983 at all. We conclude that it is not. “We have repeatedly noted that 42 U. S. C. § 1983 creates a species of tort liability.” Memphis Community School Dist. v. Stachura, 477 U. S. 299, 305 (1986) (internal quotation marks omitted). “[OJver the centuries the common law of torts has developed a set of rules to implement the principle that a person should be compensated fairly for injuries caused by the violation of his legal rights. These rules, defining the elements of damages and the prerequisites for their recovery, provide the appropriate starting point for the inquiry under § 1983 as well.” Carey v. Piphus, 435 U. S. 247, 257-258 (1978). Thus, to determine whether there is any bar to the present suit, we look first to the common law of torts. Cf. Stachura, supra, at 306. The common-law cause of action for malicious prosecution provides the closest analogy to claims of the type considered here because, unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process. “If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 888 (5th ed. 1984). But a successful malicious prosecution plaintiff may recover, in addition to general damages, “compensation for any arrest or imprisonment, including damages for discomfort or injury to his health, or loss of time and deprivation of the society.” Id., at 887-888 (footnotes omitted). See also Roberts v. Thomas, 185 Ky. 63, 121 S. W. 961 (1909). One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused. Prosser and Keeton, supra, at 874; Carpenter v. Nutter, 127 Cal. 61, 59 P. 301 (1899). This requirement “avoids parallel litigation over the issues of probable cause and guilt. . . and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.” 8 S. Speiser, C. Krause, & A. Gans, American Law of Torts §28:5, p. 24 (1991). Furthermore, “to permit a convicted criminal defendant to proceed with a malicious prosecution claim would permit a collateral attack on the conviction through the vehicle of a civil suit.” Ibid. This, Court has long expressed similar concerns for finality and consistency and has generally declined to expand opportunities for collateral attack, see Parke v. Raley, 506 U. S. 20, 29-30 (1992); Teague v. Lane, 489 U. S. 288, 308 (1989); Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923); Voorhees v. Jackson, 10 Pet. 449, 472-473 (1836). We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution. We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U. S. C. §2254. A claim for damages bearing that relationship, to a conviction or sentence that has not been so invalidated is not cognizable under §1983. Thus, when a state prisoner seeks damages in a §1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Respondents had urged us to adopt a rule that was in one respect broader than this: Exhaustion of state remedies should be required, they contended, not just when success in the § 1983 damages suit would necessarily show a conviction or sentence to be unlawful, but whenever “judgment in a § 1983 action would resolve a necessary element to a likely challenge to a conviction, even if the § 1983 court [need] not determine that the conviction is invalid.” Brief for Respondents 26, n. 10. Such a broad sweep was needed, respondents contended, lest a judgment in a prisoner’s favor in a federal-court § 1983 damages action claiming, for example, a Fourth Amendment violation, be given preclusive effect as to that subissue in a subsequent state-court post-conviction proceeding. Preclusion might result, they asserted, if the State exercised sufficient control over the officials’ defense in the § 1983 action. See Montana v. United States, 440 U. S. 147, 154 (1979). While we have no occasion to rule on the matter at this time, it is at least plain that preclusion will not necessarily be an automatic, or even a permissible, effect. In another respect, however, our holding sweeps more broadly than the approach respondents had urged. We do not engraft an exhaustion requirement upon §1983, but rather deny the existence of a cause of action. Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. That makes it unnecessary for us to address the statute-of-limitations issue wrestled with by the Court of Appeals, which concluded that a federal doctrine of equitable tolling would apply to the § 1983 cause of action while state challenges to the conviction or sentence were being exhausted. (The court distinguished our cases holding that state, not federal, tolling provisions apply in § 1983 actions, see Board of Regents of Univ. of State of N. Y. v. Tomanio, 446 U. S. 478 (1980); Hardin v. Straub, 490 U. S. 536 (1989), on the ground that petitioner’s claim was “in part one for habeas corpus.” 997 F. 2d, at 358.) Under our analysis the statute of limitations poses no difficulty while the state challenges are being pursued, since the § 1983 claim has not yet arisen. Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff’s favor, 1 C. Corman, Limitation of Actions § 7.4.1, p. 532 (1991); Carnes v. Atkins Bros. Co., 123 La. 26, 31, 48 So. 572, 574 (1909), so also a §1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated. Applying these principles to the present action, in which both courts below found that the damages claims challenged the legality of the conviction, we find that the dismissal of the action was correct. The judgment of the Court of Appeals for the Seventh Circuit is Affirmed. Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Neither in his petition for certiorari nor in his principal brief on the merits did petitioner contest the description of his monetary claims (by both the District Court and the Court of Appeals) as challenging the legality of his conviction. Thus, the question we understood to be before us was whether money damages premised on an unlawful conviction could be pursued under § 1983. Petitioner sought to challenge this premise in his reply brief, contending that findings validating his damages claims would not invalidate his conviction. See Reply Brief for Petitioner 6-6. That argument comes too late. We did not take this case to review such a fact-bound issue, and we accept the characterization of the lower courts. We also decline to pursue, without implying the nonexistence of, another issue, suggested by the Court of Appeals’ statement that, if petitioner’s “conviction were proper, this suit would in all likelihood be barred by res judicata.” 997 F. 2d 355, 357 (CA7 1993). The res judicata effect of state-court decisions in § 1983 actions is a matter of state law. See Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75 (1984). Title 28 U. S. C. § 2254(b) provides: “An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” Justice Souter criticizes our reliance on malicious prosecution’s favorable termination requirement as illustrative of the common-law principle barring tort plaintiffs from mounting collateral attacks on their outstanding criminal convictions. Malicious prosecution is an inapt analogy, he says, because “[a] defendant’s conviction, under Reconstruction-era common law, dissolved his claim for malicious prosecution because the conviction was regarded as irrebuttable evidence that the prosecution never lacked probable cause.” Post, at 496, citing T. Cooley, Law of Torts 185 (1879). Chief Justice Cooley no doubt intended merely to set forth the general rule that a conviction defeated the malicious prosecution plaintiff’s allegation (essential to his cause of action) that the prior proceeding was without probable cáuse. But this was not an absolute rule in all jurisdictions, see Goodrich v. Warner, 21 Conn. 432, 443 (1852); Richter v. Koster, 45 Ind. 440, 441-442 (1874), and early on it was recognized that there must be exceptions to the rule in cases involving circumstances such as fraud, perjury, or mistake of law, see Burt v. Place, 4 Wend. 591 (N. Y. 1830); Witham v. Gowen, 14 Me. 362 (1837); Olson v. Neal, 63 Iowa 214, 18 N. W. 863 (1884). Some cases even held that a “conviction, although it be after-wards reversed, is prima facie evidence — and that only — of the existence of probable cause.” Neher v. Dobbs, 41 Neb. 863, 868, 66 N. W. 864, 865 (1896) (collecting cases). In Crescent City Live Stock Co. v. Butchers’ Union Slaughter-House Co., 120 U. S. 141 (1887), we recognized that “[h]ow much weight as proof of probable cause shall be attributed to the judgment of the court in the original action, when subsequently reversed for error, may admit of some question.” Id., at 149. We attempted to “reconcile the apparent contradiction in the authorities,” id., at 151, by observing that the presumption of probable cause arising from a conviction can be rebutted only by showing that the conviction had been obtained by some type of fraud, ibid. Although we ultimately held for the malicious prosecution defendant, our discussion in that case well establishes that the absolute rule Justice Souter contends for did not exist. Yet even if Justice Souter were correct in asserting that a prior conviction, although reversed, “dissolved [a] claim for malicious prosecution,” post, at 496, our analysis would be unaffected. It would simply demonstrate that no common-law action, not even malicious prosecution, would permit a criminal proceeding to be impugned in a tort action, even after the conviction had been reversed. That would, if anything, strengthen our belief that §1983, which borrowed general tort principles, was not meant to permit such collateral attack. Justice Souter’s discussion of abuse of process, post, at 494-495, does not undermine this principle. It is true that favorable termination of prior proceedings is not an element of that cause of action — but neither is an impugning of those proceedings one of its consequences. The gravamen of that tort is not the wrongfulness of the prosecution, but some extortionate perversion of lawfully initiated process to illegitimate ends. See, e. g., Donohoe Const. Co. v. Mount Vernon Associates, 235 Va. 531, 539-540, 369 S. E. 2d 857, 862 (1988); see also 8 S. Speiser, C. Krause, & A. Gans, American Law of Torts §§ 28:32-28:34 (1991). Cognizable injury for abuse of process is limited to the harm caused by the misuse of process, and does not include harm (such as conviction and confinement) resulting from that process’s being carried through to its lawful conclusion. Thus, one could no more seek compensatory damages for an outstanding criminal conviction in an action for abuse of process than in one for malicious prosecution. This limitation is illustrated by McGann v. Allen, 105 Conn. 177, 191, 134 A. 810, 815 (1926), where the court held that expenses incurred by the plaintiff in defending herself against crimes charged against her were not compensable in a suit for abuse of process, since “[d]amage[s] for abuse of process must be confined to the damage flowing from such abuse, and be confined to the period of time involved in taking plaintiff, after her arrest, to [defendant’s] store, and the detention there.” An example of this latter category — a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff’s criminal conviction was wrongful — would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. (This is a common definition of that offense. See People v. Peacock, 68 N. Y. 2d 675, 496 N. E. 2d 683 (1986); 4 C. Torcia, Wharton’s Criminal Law § 593, p. 307 (14th ed. 1981).) He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, see n. 2, supra, the § 1983 action will not lie. For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U. S. 533, 539 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U. S. 279, 307-308 (1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawfiil. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U. S. 299, 308 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned). For example, if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court proceedings. See Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 (1976). Moreover, we do not decide whether abstention might be appropriate in cases where a state prisoner brings a § 1983 damages suit raising an issue that also could be grounds for relief in a state-court challenge to his conviction or sentence. Cf. Tower v. Glover, 467 U. S. 914, 923 (1984). State courts are bound to apply federal rules in determining the preclusive effect of federal-court decisions on issues of federal law. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1604 (3d ed. 1988) (“It is clear that where the federal court decided a federal question, federal res judicata rules govern”); Deposit Bank v. Frankfort, 191 U. S. 499, 514-518 (1903); Stoll v. Gottlieb, 305 U. S. 165, 170-171, 174-175 (1938). The federal rules on the subject of issue and claim preclusion, unlike those relating to exhaustion of state remedies, are “almost entirely judge-made.” Hart & Wechsler’s, supra, at 1598; see also Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 Cornell L. Rev. 733, 747-778 (1986). And in developing them the courts can, and indeed should, be guided by the federal policies reflected in congressional enactments. Cf. Moragne v. States Marine Lines, Inc., 398 U. S. 375, 390-391 (1970). See also United States v. Mendoza, 464 U. S. 154 (1984) (recognizing exception to general principles of res judicata in light of overriding federal policy concerns). Thus, the court-made preclusion rules may, as judicial application of the categorical mandate of § 1983 may not, see Patsy v. Board of Regents of Fla., 457 U. S. 496, 509 (1982), take account of the policy embodied in § 2254(b)’s exhaustion requirement, see Rose v. Lundy, 455 U. S. 509 (1982), that state courts be given the first opportunity to review constitutional claims bearing upon state prisoners’ release from custody. Justice Souter also adopts the common-law principle that one cannot use the device of a civil tort action to challenge the validity of an outstanding criminal conviction, but thinks it necessary to abandon that principle in those cases (of which no real-life example comes to mind) involving former state prisoners who, because they are no longer in custody, cannot bring postconviction challenges. Post, at 500. We think the principle barring collateral attacks — a longstanding and deeply rooted feature of both the common law and our own jurisprudence — is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated. Justice Souter opines that disallowing a damages suit for a former state'prisoner framed by Ku Klux Klan-dominated state officials is “hard indeed to reconcile . . . with the purpose of § 1983.” Post, at 502. But if, as Justice Souter appears to suggest, the goal of our interpretive enterprise under §1983 were to provide a remedy for all conceivable invasions of federal rights that freedmen may have suffered at the hands of officials of the former States of the Confederacy, the entire landscape of our § 1983 jurisprudence would look very different. We would not, for example, have adopted the rule that judicial officers have absolute immunity from liability for damages under §1983, Pierson v. Ray, 386 U. S. 547 (1967), a rule that would prevent recovery by a former slave who had been tried and convicted before a corrupt state judge in league with the Ku Klux Klan. Our recent opinion in Wyatt v. Cole, 504 U. S. 158 (1992), summarized the manner in which the Court has analyzed the relationship between the common law and § 1983 in the context of immunity: “Section 1983 ‘creates a species of tort liability that on its face admits of no immunities.’ Imbler v. Pachtman, 424 U. S. 409, 417 (1976). Nonetheless, we have accorded certain government officials either absolute or qualified immunity from suit if the ‘tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that “Congress would have specifically so provided had it wished to abolish the doctrine.’” Owen v. City of Independence, 445 U. S. 622, 637 (1980) (quoting Pierson v. Ray, 386 U. S. 547, 555 (1967)). If parties seeking immunity were shielded from tort liability when Congress enacted the Civil Rights Act of 1871 — § 1 of which is codified at 42 U. S. C. § 1983 — we infer from legislative silence that Congress did not intend to abrogate such immunities when it imposed liability for actions taken under color of state law. See Tower v. Glover, 467 U. S. 914, 920 (1984); Imbler, supra, at 421; Pulliam v. Allen, 466 U. S. 522, 529 (1984). Additionally, irrespective of the common law support, we will not recognize an immunity available at common law if §1983’s history or purpose counsel against applying it in § 1983 actions. Tower, supra, at 920. See also Imbler, supra, at 424-429.” Id., at 163-164. In his concurrence, Justice Kennedy stated: “It must be remembered that unlike the common-law judges whose doctrines we adopt, we are devising limitations to a remedial statute, enacted by the Congress, which ‘on its face does not provide for any immunities.’” Id., at 171 (quoting Malley v. Briggs, 475 U. S. 335, 342 (1986)) (emphasis added in Malley). Question: Did administrative action occur in the context of the case? A. No B. Yes 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. AMERICAN EXPORT & ISBRANDTSEN LINES et al., Petitioners, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents. No. 18816. United States Court of Appeals Ninth Circuit. June 26, 1964. Leonard G. James, Robert L. Harmon, F. Conger Fawcett, Graham, James & Rolph, San Francisco, Cal., for petitioner. William H. Orrick, Asst. Atty. Gen., Irwin A. Seibel, Michael I. Miller, Department of Justice, Washington, D. C., James L. Pimper, General Counsel, Robert E. Mitchell, Deputy General Counsel, John E. Cograve, Robert B. Hood, Jr., Federal Maritime Commission, Washington, D. C., for respondents. Clarence Morse, San Francisco, Cal., for intervener Sacramento-Yolo Port Dist. J. Richard Townsend, San Francisco, Cal., for intervener Stockton Port Dist. Before CHAMBERS, POPE and JERTBERG, Circuit Judges. JERTBERG, Circuit Judge: Petitioners seek a review of the following order issued by the Federal Maritime Commission on July 17, 1963, in its Docket No. 1102: “This proceeding having been initiated by the Federal Maritime Commission pursuant to Rule 5(g) of its Rules of Practice and Procedure, and the Commission having fully considered the matter and having this day made and entered of record a Report containing its findings and conclusions, which Report is hereby referred to and made a part hereof: “IT IS ORDERED, That the motion to dismiss the proceeding filed by Pacific Coast European Conference and its member lines (respondents) be and it hereby is denied; that respondents cease and desist from putting into effect or carrying out Rule 29 of their Freight Tariff No. 13; and that respondents forthwith strike Rule 29 from their Freight Tariff No. 13.” Petitioners sought from this court an interlocutory injunction restraining enforcement of the Commission’s order pending final decision on the merits of the petition. This court denied the motion and petitioners suspended their Rule 29 pending outcome of this review. The petitioners are common carriers by water and provide regular shipping sei’vice from Pacific Coast ports of the United States to ports in Europe. They are members of a steamship conference — ■ The Pacific Coast European Conference —formed by Conference Agreement [presently designated F.M.C. No. 5200] approved May 26, 1937 under Section 15 of the Shipping Act, 1916, (46 U.S.C. § 814) by a predecessor of the Commission, and thereafter amended in parts not here material. Petitioners published from time to time a tariff setting forth all agreed rates, rules and regulations which are decided upon by a three-fourths vote of the membership of the Conference, and filed the same with the Commission under Section 15 of the Shipping Act. Its current tariff filed the Commission is Pacific Coast European Conference Freight Tariff No. 13. On February 20, 1963 petitioners filed with the Commission an amendment to the general rules section of their Freight Tariff 13, adding a new rule, Rule 29, reading as follows: “29. PORT EQUALIZATION. Carriers may equalize a shipper’s cost of delivering cargo to carriers’ designated loading berths in accordance with the conditions herein set forth: “(a) Equalization is the absorption by a carrier of the dif-erence between a shipper’s cost of delivery to ship’s tackle at the loading port nearest to the shipment’s point of origin and the cost of delivery to ship’s tackle at the loading port designated by the equalizing carrier. “(b) Equalization shall be restricted to transportation costs on shipments from points of origin in California to loading berths in either Stockton, Sacramento, or a San Francisco Bay Area port, viz., Alameda, Oakland, Richmond or San Francisco. “(c) Equalization shall not be made between San Francisco Bay Area ports, nor between berths within any of the ports named in (b) above. “(d) The delivery costs shall be based upon the lowest available published rates. “(e) Equalization payments shall only be made upon shipper’s invoices submitted to individual carriers and approved by the Conference office. Invoices must be supported by copies of the covering ocean bills of lading and copies of the transportation bills showing applicable tariff authorities covering movement from shippers’ points of origin.” Rule 29 was adopted by the conference in accordance with the voting procedures set forth in Article 8 of the Conference Agreement. Petitioners contend on this review that the Commission in issuing the order under review erred in holding Rule 29 to be “an unapproved Section 15 amendment,” and that the procedures adopted by the Commission leading up to the issuance of the order violated petitioners’ right to due process in the following respects : “A. The Commission failed and refused to furnish Petitioners a copy of the Complaint, as required by Section 5 of the Administrative Procedure Act, Rule 8(c) of the Commission’s Rules of Practice (18 F.R. 3721), and the 5th Amendment. “B. Acting as prosecutor and judge, the Commission authorized its own counsel to appear before the Commission as advocate for a private claimant, Port of Stockton, despite the repeal of statutory authority for the employment of attorneys ‘for proper representation of the-public interest, in investigations-made by it’. (Repeal of Section 3,. Merchant Marine Act, 1920, 41 Stat.. 989, by Section 903(b), Merchant. Marine Act, 1936, 49 Stat. 2016.) “C. The Commission, without any or adequate notice to Petitioners, admitted as intervenors the-real Complainant, Port of Stockton, and the port authorities of Sacramento and Portland, Oregon, in violation of Rule 5(n) of the Commission’s Rules of Practice (18 F.R.. 3719) and Section 5 of the Administrative Procedure Act. “D. The Commission failed and refused to hear evidence on the matters of fact asserted in its order of investigation, in violation of Section; 5(b) of the Administrative Procedure Act and Rule 10 (n) of its own; Rules of Practice (18 F.R. 3722). “E. The Commission based its-order upon findings of fact made-outside the record, in violation of' its own Rules of Practice, Rule 10 (cc) (18 F.R. 3722), and Section 7 (d) of the Administrative Procedure-Act. “F. The Commission failed and refused to notify Petitioners of alt matters of fact and law asserted, in-violation of Section 5 of the Administrative Procedure Act. “G. The Commission failed to-síate in its report the ‘legal authority and jurisdiction under which the-hearing’ was to be held, as required by Section 5 of the Administrative-Procedure Act. “H. The Commission failed to-make the preliminary and ultimate-statutory findings and conclusions called for by Section 8(b) of the Administrative Procedure Act. “I. The Commission failed and refused to afford Petitioners an ‘initial or recommended decision’ and the right to file exceptions thereto,, as required by Section 8 of the Administrative Procedure Act. “J. The Commission failed and refused to afford Petitioners timely notice of its order denying Petitioners’ motion to dismiss the proceeding, and a reasonable time to answer the charges, in violation of Section 6(d) of the Administrative Procedure Act.” In order to properly consider petitioners’ last mentioned contention, it is necessary to set forth somewhat in detail the procedures adopted by the Commission leading up to the issuance of the order under review. Prior to the filing of Rule 29 with the Commission, the Port of Stockton, California, an intervenor in the proceedings before the Commission, by letter advised the Commission that the rule would be filed and requested its rejection by the Commission on the ground that the rule constituted a modification of petitioners’ basic agreement and as such required approval by the Commission under section 15 of the Shipping Act. The Commission by letter informed the then Chairman of the Conference as follows: “We have received information indicating that the Pacific Coast European Conference contemplates filing in its tariff port equalization rules which would permit member lines to absorb a portion of the rail or truck freight charges from interior points in California to San Francisco Bay ports, or, in the reverse direction, in order to equalize shippers’ charges via various ports. It is reported that this equalization rule will be filed to become effective March 1, 1963. “We have received an informal protest stating that since the Pacific Coast European Conference agreement does not contain any provision permitting port equalization, such port equalization rules must be filed with the Commission and approved under Section 15 before becoming effective. The argument is advanced that the promulgation of port equalization rules goes beyond the scope of the presently approved agreement and, therefore, impla-mentation of such a rule without Section 15 approval, would be a violation of that Section. “The informal complaint further requests that if such a filing is made by your conference it be rejected by the Commission. “The above is a summary of the informal complaint which we have received. We request the views of the conference regarding the substance of this complaint.” The Chairman of the Conference replied to the Commissioner’s letter, in relevant part, as follows: “The Conference has adopted a Port Equalization rule which is shown on 11th Revised Page ‘R’ of the General Rules Section of Conference Freight Tariff No. 13 as Rule No. 29 — Posrt Equalization. This page was issued 20th February to become effective 1st March 1963 and has been filed with the Commission. “Since your letter merely contains a summary of the informal complaint and does not name the pro-testan! it would be appreciated if you would furnish me with a complete copy of the complaint, including the name and address of the pro-testan! Upon receipt of the informal complaint the matter will be given further attention.” The Commission by letter then advised the Chairman that the substance of the complaint had been accurately stated and advised him that, in the Commission’s view, the name of the complainant was unnecessary in responding to the Commission’s inquiry, and urged a reconsideration by the Conference of its position and a response to the earlier letter of the Commission. No reply was received from petitioners. On April 9, 1963, the Commission, pursuant to Rule 5(g) of its Rules of Practice and Procedure [46 C.F.R. § 502.68] issued a show cause order directed to the petitioners as follows: “On February 20, 1963, the member lines of the Pacific Coast European Conference amended their Freight Tariff No. 13 to include a new rule numbered 29, to be effective March 1, 1963. “Rule 29, entitled Tort Equalization’ provides that the member lines may equalize a shipper’s cost of delivering cargo to the lines’ designated loading berths in accordance with the conditions set forth therein. “Paragraph A of Rule 29 states that equalization is the absorption by a carrier of the difference between a shipper’s cost of delivery to ship’s tackle at the loading port nearest to the shipment’s point of origin and the cost of delivery to ship’s tackle at the loading port designated by the equalizing carrier. “Agreement 5200, the approved agreement of the Pacific Coast European Conference, provides in Section 1 thereof: “ ‘This agreement covers the establishment, regulation and maintenance of agreed rates and charges for or in connection with the transportation of all cargo in vessels owned, controlled, chartered and/or operated by the parties hereto in the trade covered by this agreement, and brokerage, tariffs and other matters directly relating thereto, members being bound to the maintenance as between themselves of uniform freight rates and practices as agreed upon from time to time.’ “It appears that the above-quoted language of Agreement 5200 may not encompass port equalization within ‘the establishment, regulation and maintenance of agreed rates and charges’ and that the equalization rule introduces an entirely new scheme of rate combination and discrimination not embodied in the basic agreement, requiring specific approval pursuant to Section 15 of the Shipping Act, 1916. “Rule 29 has not been submitted to the Commission for approval, nor approved pursuant to Section 15 of the Shipping Act, 1916, and is being effectuated by the member lines. “Section 15 provides in part that: “ ‘Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification or cancellation ; * * .’ “It therefore appears that the publication and effectuation of Rule 29 by the member lines of the Pacific Coast European Conference may be in violation of the terms of Section 15. “The issues raised herein do not involve any disputed issues of fact requiring an evidentiary hearing, and require a prompt determination by the Commission. “THEREFORE, IT IS ORDERED, That the Pacific Coast European Conference and the member lines thereof show cause why the port equalization provision, Rule 29 of Freight Tariff No. 13, should not be declared unlawful and why Rule 29 should not be ordered stricken from said tariff. This proceeding shall be limited to the submission of affidavits and memoran-da, replies thereto and oral argument. The affidavits of fact and memoranda of law shall be filed no later than close of business April 30, 1963, replies thereto shall be filed no later than close of business May 10, 1968. An original and 15 copies of such affidavits of fact and mem-oranda of law, and replies thereto, are required and must be addressed to the Secretary, Federal Maritime Commission, Washington 25, D. C. Copies of any papers filed with the Secretary should also be served upon all parties hereto. Oral argument will be held at 9:30 A.M., May 17, 1963 in Room 114, 1321 H Street, N.W. Washington, D. C. “IT IS FURTHER ORDERED, That the Pacific Coast European Conference and the member lines thereof as indicated in Appendix A attached hereto are hereby made respondents in this proceeding. “IT IS FURTHER ORDERED, That notice of this Order and notice of hearing be published in the Federal Register, and a copy of such Order and notice of hearing be served upon respondents. “All persons (including individuals, corporations, associations, firms, partnerships, and public bodies) having an interest in this proceeding and desiring to intervene therein, should notify the Secretary of the Commission promptly and file petitions for leave to intervene in accordance with Rule 5(n) [46 CFR § 201.74] of the Commission’s Rules of Practice and Procedure.” Copies of the order were served on petitioners on April 15, 1963. On April 23, 1963 the Commission granted the petition of Port of Stockton to intervene in the proceedings. On April 26, 1963 petitioners filed with the Commission a motion to dismiss the proceedings, in form as follows: “The order instituting the present proceeding and the procedure therein contemplated are without a lawful, statutory basis and are, in fact, directly contrary to the minimum requirements of a fair hearing as set forth in the Shipping Act and the Administrative Procedure Act. Consequently, Respondents respectfully move this Commission to dismiss the proceeding and, if it deem such action desirable, to reinstitute its investigation of Respondents’ Port Equalization Rule in a proper and lawful manner.” Replies in opposition to.. petitioners’ motion to dismiss were filed by Port of' Stockton and Hearing Counsel on May 6, 1963. On May 8, 1963 petitioners were notified that oral argument on the merits would be held on May 17th as provided in the order to show cause and petitioners were requested to advise the Commission as to the amount of time desired for oral argument. Petitioners’ counsel, in reply, requested information as to what disposition had been made of petitioners’ motion to dismiss. Petitioners were then notified that arguments on the motion to dismiss would be held on May 17th. Petitioners’ counsel replied to the Commission that in view of the short notice it was impossible to participate in the oral argument and stated that “accordingly hereby submit respondents case on written motion.” Petitioners’ counsel did not appear for oral argument. On July 17, 1963 the Commission rendered its report on the case and issued the order under review. In its report accompanying the order the Commission ruled that the procedures adopted by the Commission were in accordance with law; that petitioners’ motion to dismiss was without merit and that Rule 29 was not sanctioned by any provision of petitioners’ basic Conference Agreement. We are not impressed by the criticisms, multiplicitous as they are, made by the petitioners to the procedures adopted by the Commission in this case. From our review of the record we are satisfied that no substantial right of due process was denied to them and no prejudice was suffered by them. The proceeding was instituted by the Commission, on its own motion, upon issuance of the order to show cause set forth earlier in this opinion. While it may be true that the letter received by the Commission, prior to the filing of Rule 29, from the Port of Stockton triggered the decision of the Commission to institute the show cause procedure, it cannot be said that the proceedings were instituted by a formal complaint filed by the Port of Stockton. Section 22 of the Shipping Act (1916) [46 U.S.C. § 821] in substance provides that any person may file with the Board a sworn complaint setting forth any violation of the Shipping Act by any of the persons subject to the Act. In such case the Board must furnish a copy of the complaint to such other person who has a reasonable time to satisfy the complaint or answer it in writing. If the ■complaint is not satisfied, then the Board shall investigate it in such manner and by such means, and make such orders as it deems proper. Moreover, the section provides: “The Board, upon its own motion, may in like manner and, * , with the same powers investigate any violation of this chapter.” Rule 5(g) of the Commission’s Rules of Practice and Procedure [46 C.F.R. c. iv § 502.67] provides: “(g) Order to show cause. The board may institute a proceeding against a person subject to its jurisdiction by order to show cause. The order shall be served upon all persons named therein, shall include the information specified in rule 10(c), may require the person named therein to answer, and shall require such person to appear at a specified time and place and present evidence upon the matters specified.” Petitioners claim that the Commission, in failing to serve petitioners with a copy of the letter received by the Commission from the Port of Stockton, violated Section 5(a) of the Administrative Procedure Act, and Rule 8(c) of the Commission’s Rules of Practice and Procedure [46 C.F.R. c. iv § 502.67] which provides that complaints filed pursuant to Rule 5(b) [46 C.F.R. § 502.62] shall be served by the Commission. Since the letter from the Port of Stockton was not a formal complaint and did not purport to be such, compliance with Rule 5(b) and Rule 8(c) governing formal complaints was unnecessary. Petitioners admit that they received a copy of the order to show cause, which meets the requirements of Rule 5(a) of the Administrative Procedure Act. There is likewise no merit in petitioners’ claim that they were given insufficient notice of the petitions to intervene filed by Port of Stockton and others, and thus denied their right to reply. The record discloses that the petitions to intervene were filed prior to the hearing. Intervention is provided for in Rule 5(n) [46 C.F.R. § 502.73] which allows replies to petitions to intervene only if they are filed subsequent to the hearing. Petitioners contend that the Commission violated Section 5 of the Administrative Procedure Act by failing to notify them “of all matters of fact and law asserted” and to state in its report the “legal authority and jurisdiction under which the hearing” was to be held. We do not agree. The order to show cause informed petitioners: (1) that Rule 29 had been filed with the Commission; (2) that the Rule provided for port equalization which permitted “the absorption by a carrier of the difference between the shipper’s cost of delivery to ship’s tackle at the loading port nearest to the shipment’s point of origin and the cost of delivery to the ship’s tackle at the loading port designated by the equalizing carrier.”; (3) of Section 1 of the Conference Agreement; (4) that the quoted language of Section 1 of the Basic Agreement may not encompass port equalization within “the establishment, regulation and maintenance of agreed rates and charges”; (5) that the equalization rule introduced an entirely new scheme of rate combination and discrimination not embodied in the Basic Agreement, requiring specific approval to Section 15 of the Shipping Act (1916); (6) that Rule 29 had not been submitted to the Commission for approval, nor approved, pursuant to Section 15 of the Shipping Act, and is being effectuated by the member lines; (7) of relevant portions of Section 15 of the Shipping Act; (8) that the publication and ef-fectuation of Rule 29 may be in violation of the terms of Section 15; and, finally, (9) to appear at the time and place specified and show cause why Rule 29 should not be declared unlawful and ordered stricken from petitioners’ tariff. We are satisfied that the order to show cause was in full compliance with the requirements of Section 5(a) of the Administrative Procedure Act, and that the order clearly advised the petitioners of the issues involved in the proceeding. Contrary to petitioners’ assertion, we believe they were afforded ample notice of the order of the Commission denying their motion to dismiss the proceeding, and a reasonable time to answer the order to show cause. The order to show cause was served on petitioners on April 15, 1963. By the terms of the order, affidavits of fact and memorandum of law were required to be filed not later than April 30,1963. Replies thereto were to be filed not later than May 10th, and oral argument was fixed for May 17, 1963. Thus petitioners had more than thirty days notice of the time and place fixed for oral argument. Petitioners did nothing'except to file, on April 26, 1963, a motion to dismiss the proceedings on the sole ground that the Commission was without statutory authority to adopt the order to show cause procedure. They deliberately and advisedly elected to rest their entire case on their motion to dismiss. In these circumstances they are in.no position to complain of the lawful, authorized procedure which the Commission followed. The petitioners were promptly notified of the order denying the motion to dismiss and the reasons therefor, which notice was in compliance with the provisions of Section 6(d) of the Administrative Procedure 'Act [5 U.S.C. § 1005]. Since the proceeding was not bifurcated but was conducted in its entirety before the members of the Commission, we see no merit in petitioners’ complaint that the Commission failed and refused to afford petitioners “an ‘initial or recommended decision’ and the right to file exceptions thereto, as required by Section 8 of the Administrative Procedure Act.” [5 U.S.C. § 1007.] Petitioners complain of the failure of the Commission to conduct an evidentiary type of hearing, to make required findings of fact and conclusions of law, and that the order under review is based upon findings of fact made outside of the record, allegedly in violation of various provisions of the Administrative Procedure Act and in violation of the Rules of Practice of the Commission. The petitioners did not, in their motion to dismiss — which was the only document filed by them with the Commission — apprise the Commission of any fact stated in the order to show cause which petitioners disputed. Petitioners were notified in the order to show cause of their right to file affidavits and memorandum of law. They did not avail themselves of that opportunity to call to the attention of the Commission any facts which they disputed or which they believed to be relevant and material. Neither did they seek from the Commission any permission to submit evidence or to secure further time in which to submit the same. There is no issue on the following facts set forth in the order to show cause: 1. That petitioners, on February 20, 1963, amended their Freight Tariff No. 13 to include the new Rule 29 to be effective March 1, 1963; 2. That Rule 29, entitled “Port Equalization” provides that member lines may equalize the shipper’s cost of delivering cargo to the lines designated loading berths in accordance with the conditions set forth therein; 3. As to the contents of Rule 29; 4. As to Agreement 5200, the approved Agreement of the petitioners; 5. Rule 29 had not been submitted to the Commission for approval, nor given specific approval, pursuant to Section 15 of the Shipping Act (1916) and that the Rule was to be effectuated by the petitioners ; nor 6. As to the relevant provisions of Section 15. In view of the contents of the order to show cause, it appears to us there were no issues of fact to be resolved by the Commission. Rule 29 and the Basic Conference Agreement in light of the contents of the order to show cause presented only questions of law for determination by the Commission. In these circumstances an evidentiary hearing is not required. Petitioners were given the opportunity to present legal memorandum, and the opportunity of oral argument. In the context of this ease they were entitled to no more. Producers Livestock Marketing Association v. United States et al., 241 F.2d 192 (10th Cir., 1957); affirmed, Denver Union Stockyard Company v. Producers Livestock Marketing Association, 356 U.S. 282, 78 S.Ct. 738, 2 L.Ed.2d 771 (1958). The Court of Appeals stated at page 196 of 241 F.2d: “Although 9 C.F.R. 202.2(g) defines ‘hearing’ to be ‘that part of the proceeding which involves the submission of evidence’, it is fundamental to the law that the submission of evidence is not required to characterize ‘a full hearing’ where such evidence is immaterial to the issue to be decided. In construing a similar provision of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., the Supreme Court has defined a full hearing as one in which ample opportunity is afforded to all parties to make, by evidence and argument, a showing fairly adequate to establish the propriety or impropriety, from the standpoint of justice and law of the step asked to be taken. Akron, C. & Y. Ry. Co. v. United States, 261 U.S. 184, 43 S.Ct. 270, 67 L.Ed. 605. Where no genuine or material issue of fact is presented the court or administrative body may pass upon the issues of law after according the parties the right of argument. This was done in the instant case and constitutes a ‘full hearing’ for consideration of the limited contention made by the petitioner in its complaint and by its election not to submit evidence.” Section 8(b) of the Administrative Procedure Act [5 U.S.C. § 1007] in substance provides that all decisions shall become part of the record and shall include a statement of findings and conclusions as well as the reasons or basis therefor, upon all the material issues of fact or law presented on the record. Petitioners complain of a failure to comply with such requirements. We believe there was sufficient compliance. The report of the Commission which accompanied the order under review states that no factual issue is involved, but solely questions of law on which it made findings and conclusions which fully support the order. The reasons for the conclusions are likewise stated in the report. We see no merit in petitioners’ related contention that the order under review is based upon findings of fact made outside the record in violation of the Commission’s Rules of Practice, Rule 10(cc) [46 C.F.R. 201.169] and Section 7(e) of the Administrative Procedure Act [5 U.S.C. § 1006]. Petitioners complain that the Commission was without authority to authorize the appearance in the proceedings of one of its own counsel who, petitioners claim, appeared as an advocate for the intervenor, Port of Stockton. The record does not support such claim. The mere fact that the views expressed by such counsel coincided with the views expressed by the Port of Stockton, and contrary to the views now expressed by the petitioners, does not establish his representation was other than in the public interest. There is noting in the record to suggest that such counsel participated in the decisional function of the Commission. Section 201(e) of the Merchant Marine Act (1936) [46 U.S.C. § 1111] authorizes the Commission, without regard to the Civil Service Laws, to appoint twelve attorneys and, subject to the provisions of the Civil Service Laws, to appoint such other attorneys as are necessary in the execution of its functions. In our view it was within the discretion of the Commission to authorize the appearance of “hearing counsel” in this show cause proceeding. We now consider petitioners’ first contention that the Commission erred in holding Rule 29 to be “an unapproved Section 15 amendment.” The Shipping Act (1916) Section 15 [46 U.S.C. § 814] in pertinent part provides : “Contracts between carriers filed with Commission “Every common carrier by water, * , shall file immediately with the Commission a true copy, * , of every agreement with another such carrier * or modification or cancellation thereof, to which it may be a party * * , fixing or regulating transportation rates or fares; giving or receiving special rates, accommodations, or other special privileges or advantages; controlling, regulating, preventing or destroying competition; * ; allotting ports or restricting or otherwise regulating the number and character of sailings between ports; limiting or regulating in any way the volume or character of freight or passenger traffic to be carried; or in any manner providing for an exclusive, preferential, or cooperative working arrangement. The term ‘agreement’ * * includes understandings, conferences, and other arrangements. “The Commission shall by order, after notice and hearing, disapprove, cancel or modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds to be unjustly discriminatory or unfair as between carriers, shippers, exporters, importers, or ports, * , or to operate to the detriment of the commerce of the United States, or to be contrary to the public interest, or to be in violation of this chapter, and shall approve all other agreements, modifications or cancellations. * * * * * -x- * * “Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission shall be unlawful, and agreements, modifications, and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part, directly or indirectly, any such agreement, modification, or cancellation ; except that tariff rates, fares, and charges, and classifications, rules, and regulations explanatory thereof (including changes in special rates and charges covered by section 813a of this title which do not involve a change in the spread between such rates and charges and the rates and charges applicable to noncontract shippers) agreed upon by approved conferences, and changes and amendments thereto, if otherwise in accordance with law, shall be permitted to take effect without pri- or approval upon compliance with the publication and filing requirements * * , and with the provisions of any regulations the Commission may adopt. * * ” The first question presented is whether Rule 29 constitutes an agreement or arrangement between the members of the Conference or a modification of an agreement or arrangement, regulating, preventing, or destroying competition, allotting ports or restricting or otherwise regulating the number and character of sailings between ports; or in any manner providing for an exclusive, preferential or cooperative working arrangement. Rule 29 was adopted by the Conference in accordance with the voting procedures set forth in Article 8 of the Conference Agreement, purporting to be an amendment of the General Rules section of their Freight Tariff 13. The failure of any member of the Conference to abide by the terms of the Basie Conference Agreement or of any of the rates, rules or regulations adopted thereunder is a breach of the Conference Agreement. Rule 29 permits a carrier member of the Conference to equalize a shipper’s cost of delivering cargo to such member’s designated loading berth in accordance with the five conditions set forth in the Rule. The first condition defines equalization as the absorption of the difference between a shipper’s cost of delivery to ship’s tackle at the loading port nearest to the shipment’s point of origin and the cost of delivery to ship’s tackle at the loading port designated by the equalizing carrier. Condition two restricts the equalization to transportation costs on shipments from points of origin in California to loading berths in Stockton, Sacramento or a San Francisco Bay area port. Condition three prohibits equalization between San Francisco Bay area ports and between berths in Stockton and Sacramento. The fourth condition requires that delivery costs of a shipper shall be based upon the lowest available published rates; and condition five provides that equalization payments to shippers shall only be made on shipper’s invoices submitted to the individual carriers and approved by the Conference office, and requires that invoices must be supported by specified data. It appears clear to us that Rule 29 is an agreement or arrangement which requires specific Commission approval under Section 15 unless the practice set forth in the Rule is authorized by the Basic Conference Agreement (No. 5200), approved by the predecessor of the Commission, to which question we now turn. Section 1 of the approved Conference Agreement provides: “1. This Agreement covers the establishment, regulation and maintenance of agreed rates and charges for or in connection with the transportation of all cargo in vessels owned, controlled, chartered and/or operated by the parties hereto in the trade covered by this Agreement, and brokerage, tariffs and other matters directly relating thereto, members being bound to the maintenance as between themselves of uniform freight rates and practices as agreed upon from time to time.” Section 3 of the same agreement, in pertinent part, provides: “3. All freight and other charges for, or in connection with, such transportation shall be charged and collected by the parties hereto based on actual gross weight or measurement of the cargo or per package according to tariff, and strictly in accordance with the rates, charges, classifications, rules and/or regulations adopted by the parties. There shall be no undue preference or disadvantages, nor unjust nor unreasonable discrmination, or unfair practices against any consignor or consignee by any of the parties hereto. “Each of the parties hereto agrees that neither it nor its principals nor associated nor affiliated companies of any of them shall give or promise, either directly or indirectly, to any shipper, or consignee or broker, or prospective shipper or consignee or broker, or to any officer, employee, agent or representative of any such shipper or consignee or broker, or prospective shipper, or consignee or broker, * * , in any manner, any return, commission, compensation, concession, free or reduced storage, free or reduced passenger rates, any bribe, gratuity, gift of substantial value or other payment or remuneration through any device whatsoever, or render to any of the foregoing any service outside or beyond that called for in the contracts of affreightment or tariffs. «« # » We find no other provisions contained in the basic approved Conference Agreement which appear pertinent to the subject under inquiry. It is to be noted that we are not here concerned with the merits of Rule 29. We are here concerned only with the question whether the rule requires Section 15 approval before the practices therein set forth may be initiated. If required to be submitted for approval, the question of whether the rule should be approved, disapproved, or modified must await the decision of the Commission in the exercise of its primary jurisdiction. If approval of the rule is required under Section 15, the failure to secure such approval is a violation of that part of the section which provides: “Any agreement and any modification or cancellation of any agreement not approved, or disapproved, by the Commission, shall be unlawful, and agreements, modifications and cancellations shall be lawful only when and as long as approved by the Commission; before approval or after disapproval it shall be unlawful to carry out in whole or in part directly or indirectly, any such agreement, modification, or cancellation; * * *.” In United States Navigation Company v. Cunard Steamship Co., 284 U.S. 474, at page 486, 52 S.Ct. 247, at page 251, 76 L.Ed. 408 (1932), it is stated: “If there be a failure to file an agreement as required by section 15, the Board, as in the case of other violations of the act, is fully authorized by section 22, supra, 46 USCA § 821), to afford relief upon complaint or on its own motion.” The general rule covering the Board’s authority under Section 15 is stated at page 56 in Isbrandtsen Co., Inc. v. United States, 93 U.S.App.D.C. 293, 211 F.2d 51 (1954) C.D. 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed. 1124 (1954 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_respond1_1_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 "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Florence SCOTT, formerly Florence Mesler Montague, an individual, Plaintiff-Appellant, v. WKJG, INC., and National Broadcasting Company, Inc., Defendants-Appellees. No. 15611. United States Court of Appeals Seventh Circuit. May 2, 1967. Albert L. Jeffers, Fort Wayne, Ind., for appellant. John E. Hoffman, Fort Wayne, Ind., Eugene L. Girden, New York City, Hoffman, Moppert & Solomon, Fort Wayne, Ind., Coudert Brothers, New York City, for defendants-appellee. Before DUFFY, Senior Circuit Judge, and CASTLE and SWYGERT, Circuit Judges. DUFFY, Senior Circuit Judge. This suit for damages and injunctive relief was brought by the plaintiff for the alleged infringement by defendants of a copyright owned by her. Plaintiff Scott testified that when she wrote “Discretion” in 1939, she was a housewife living in Grand Rapids, Michigan ; that she wrote it as a one-act radio play as a pilot for a proposed radio series, but that “Discretion” was never broadcast as a radio play. She testified further that in 1944, after many hours of drafting and rewriting, she expanded “Discretion” into a two and a half hour three-act play. This is the play which was copyrighted by plaintiff in 1944, and with a few brief additions, was presented by an amateur group in Detroit, Michigan, for two performances in 1946. The play “Discretion” has never been published, publicly circulated or professionally produced. The validity of plaintiff’s copyright is not contested. Up to the time of the alleged infringing telecast in 1962, plaintiff had made fifteen copies of her work some of which she still had on hand. She had circulated her work among several business agents, but without success. Mrs. Lois Hire is the author of the allegedly infringing play “Conditional Surrender.” It is a half hour TV show which was telecast on May 9, 1962 by National Broadcasting Company (NBC) and station WKJG, Inc. in Fort Wayne, Indiana, in presenting “The Loretta Young Show.” Mrs. Hire testified she wrote “Conditional Surrender” in 1960 in California, and that it was based upon an idea given to her by the instructor of an adult TY play-writing class which she attended from 1958 to 1960. She testified she completed the play in a five day, twenty hour period. Mrs. Hire is a professional writer. She has written twelve plays of which seven have been sold and produced on nationally televised productions such as “Bonanza”, “U. S. Steel Hour”, “Kentucky Jones” and “The Loretta Young Show.” Mrs. Hire testified she had never known of plaintiff’s play nor of the plaintiff until the instant suit was commenced. She testified that she had never been in the State of Michigan, and that prior to 1958, she had had no particular interest in plays or play-writing and had never read any unpublished scripts. There are similarities in the two plays here involved. Both have the same general stock plot, for each play involves a husband, wife and husband’s girl friend situation. It cannot be said that the love triangle plot is, in itself, unique. Involved in each play is a middle-aged couple having been married for about fifteen years. They have reached a crisis resulting from the husband’s involvement with a woman who works in his place of business. In each play the wife apparently accedes to the husband’s request for a divorce, but does so in a manner to show to him the disadvantages of such a situation. The wife’s terms and her other actions are, in fact, devices by which the wife seeks to defeat her husband’s plans for a divorce. In both plays the wife’s devices include the requirement that the husband assume the custody of the children, and purchase the wife’s interest in the home property. Also involved in each play is the wife’s acquisition of new clothes as a means of attracting men when the wife goes on a hunt for a new husband. There is a further similarity in that the wardrobe suggested by the wife in each case was daring and rather shocking to the husband. Plaintiff points to certain words and groups of words which, she argues, demonstrate a copying by the defendant. With reference to the suggested divorce, the wife in defendant’s play states “Since it has, there’s no point in being uncivilized about it. * * The wife in plaintiff’s play states “ * * * We’re two civilized people. * * * ” Again, the wife in defendant’s play says “ * * I’ll line them up and say ‘Boys, your father has found a new playmate’ ” while the wife in plaintiff’s play states “ * * The King is dead — long live the King.” Plaintiff also points to the use of the word “brazen.” The husband in defendant’s play states “I certainly didn’t expect this brazen man hunt.” In the plaintiff’s play the husband states “You sound brazen.” Plaintiff refers to a grammatical error, the alleged use of “I’d” as a contraction for “I had.” However, the use of “I’d” in defendant’s “Conditional Surrender” was not a contraction for “I had.” Plaintiff makes references to some additional groups of words called by her “key words,” and also additional sentences used in defendant’s play which plaintiff claims indicate copying. However, the District Court found that there were no identical or copied word for word sentences or passages in the two plays. The trial court also found the two plays were so significantly different as to sequence, characterization, characters, scenes, settings and style of writing as to be “two entirely different plays.” In addition, the District Court found there was no evidence or proof of direct access or even the possibility of access to the plaintiff’s play by the author or producers of “Conditional Surrender.” A copyright is intended to protect authorship. The essence of a copyright protection is the protection of originality rather than novelty or invention. Wihtol v. Wells, 7 Cir., 231 F.2d 550. It must be remembered that copyright protection does not extend to ideas, plots, dramatic situations and events. Rather, it is limited to the arrangement of words the author uses to express his ideas. Funkhouser v. Loew’s, Inc., 8 Cir., 208 F.2d 185, 189, cert. den. 348 U.S. 843, 75 S.Ct. 64, 99 L.Ed. 664; Burnett v. Lambino, S.D.N.Y., 204 F.Supp. 327, 331-332. To establish the infringement of a copyright, the plaintiff has the burden of proving 1) that the accused work was copied from the copyrighted work, and 2) that the author of the accused work unlawfully appropriated protected material from the copyrighted work. Arnstein v. Porter, 2 Cir., 154 F.2d 464, 468. Without direct proof of access or proof of a reasonable possibility of access, the courts have quite generally held that access and copying may be implied only if the similarities of the two plays are so striking and of such nature as to preclude the possibility of coincidence, accident or independent creation. Twentieth Century-Fox Film Corp. v. Dieckhaus, 8 Cir., 153 F.2d 893, 898-899, cert. den. 329 U.S. 716, 67 S.Ct. 46, 91 L.Ed. 621; Heim v. Universal Pictures Co., 2 Cir., 154 F.2d 480, 487. The applicable legal principle has been expressed as “In such circumstances, the similarities must be such that copying is not merely suspected, but is established with reasonable certainty.” Pinci v. Twentieth Century-Fox Film Corp., S.D. N.Y., 95 F.Supp. 884, 886. The trial court pointed out that besides the lack of convincing similarities between the two plays, there are numerous significant differences. Included in such differences the Court noted that in “Discretion” the wife is the character most emphasized and she appears in eleven of the twelve scenes of the play, while the husband is in only four of them. By contrast, in “Conditional Surrender”, the husband is the character most emphasized and he appears in all fifteen scenes, while the wife appears in seven. The trial court also observed that twelve of the approximately twenty-six minutes of the accused play involve settings that were in no way present in plaintiff’s play, and the remaining settings were typical of plays involving domestic situations. The trial court specifically found that the alleged similarities are not so striking as to raise the likelihood or the probability that the accused play was copied from the plaintiff’s play. The plaintiff argues that the District Court improperly relied upon the testimony of a paid expert witness for the defense in determining whether there were similarities between the two plays. Expert testimony may be received to assist the trier of facts in an infringement action. Arnstein v. Porter, supra. Therefore, the trial court properly considered that testimony as well as the plaintiff’s evidence showing alleged similarities, in reaching its decision. The various critical findings of the District Court, some of which we have described, are sustained by the evidence in this case. Certainly, they are not clearly erroneous. We agree with the District Court that the plaintiff has not met the required burden of proof. In the District Court, NBC raised the question of jurisdiction of the Court as to it. The Court denied the motion of NBC to dismiss the action and to quash service of summons. The briefs make only passing reference to this point. The question was not raised in oral argument. NBC did not file a cross appeal. NBC undertook the defense of its co-defendant. However, if the question were properly before us, we would sustain the decision of the District Court on this point. The judgment for the defendants is Affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_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). Erlene S. POSEY, Plaintiff-Appellant, v. REYNOLDS METALS COMPANY, Defendant-Appellee. No. 27992. United States Court of Appeals Fifth Circuit. Jan. 7, 1970. Neil Taylor, Jr., Russellville, Ala., of Taylor & Taylor, Russellville, Ala., for plaintiff-appellant. Clopper Almon, Vincent McAlister, Sheffield, Ala., for defendant-appellee. Before BELL, AINSWORTH and CARSWELL, Circuit Judges. PER CURIAM; After the District Court granted partial summary judgment dismissing appellant’s claim for long-term disability benefits, a pretrial order was entered into by the parties by which it was stipulated that “the plaintiff’s claim has evolved into one count following numerous pleadings. In this count plaintiff claims of the defendant damages in the amount of $3,624 allegedly due under the Reynolds Security Program Sick Pay Benefits.” The case was called for trial and a consent judgment in favor of plaintiff was entered in the sum of $736. The remaining count was thus disposed of. If, despite the pretrial order, stipulations and judgment entered into, there still remains the question of the propriety of summary judgment in favor of defendant-appellee as to appellant’s claim for long-term disability benefits, it is our view that summary judgment was proper under the circumstances. It is clear from the exhibits and affidavits that the claim for long-term benefits is properly against Continental Casualty Company which issued a policy group insurance in favor of employees of defendant Reynolds Metals, of which appellant was one. The long-term disability plan was a voluntary one on the part of the employees and premium payments were made by employees by deductions from their salaries at Reynolds, which sums were then forwarded to Continental. The pamphlet literature distributed by Reynolds to its employees clearly stated that the LTD benefits were payable under the provisions of a group policy issued to Reynolds by Continental Casualty Company. Thereafter appellant received a certificate of insurance from Continental Casualty Company describing the benefits in detail. (App. p. 66.) There can be no dispute under the various exhibits and affidavits submitted by the parties that the long-term disability benefits were the liability solely of Continental Casualty Company, and not of defendant. The court below apparently also took judicial cognizance of the pen-dency of a suit by appellant for the same long-term disability benefits against Continental Casualty Company originally filed in Circuit Court of Colbert County, Alabama, subsequently removed to United States District Court for the Northern District of Alabama, from which the instant appeal is taken. That suit, and not this one, will ultimately determine whether appellant is entitled to such benefits. Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_issue_2	17	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. WILSON et al. v. OMAHA INDIAN TRIBE et al. No. 78-160. Argued March 21, 1979 — Decided June 20, 1979 White, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the cases. BlackmuN, J., filed a concurring opinon, in which Burger, C. J., joined, post, p. 679. Edson Smith argued the cause for petitioners in No. 78-160. With him on the briefs were Robert H. Berkshire, Thomas R. Burke, Lyman L. Larsen, Francis M. Gregory, Jr., and Maurice B. Nieland. Bennett Cullison, Jr., argued the cause for petitioners in No. 78-161. With him on the brief were Richard C. Turner, Attorney General of Iowa, and' James C. Davis, Assistant Attorney General. William H. Veeder argued the cause and filed a brief for respondent Omaha Indian Tribe in both cases. Sara Sun Beale argued the cause for the United States in both cases. With her on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, Robert L. Klarquist, and Edward J. Shawaker. Together with No. 78-161, Iowa et al. v. Omaha Indian Tribe et al., also on certiorari to the same court. Edgar B. Washburn filed a brief for Title Insurance and Trust Co. et al. as amici curiae urging reversal in both cases. A brief of amici curiae urging reversal in No. 78-161 was filed for their respective States by Theodore L. Sendak, Attorney General of Indiana, Jane Gootee, Deputy Attorney General, and Donald Bogará; William J. Baxley, Attorney General of Alabama; Avrum Gross, Attorney General of Alaska; John A.t LaSota, Jr., Acting Attorney General of Arizona; William J. Clinton, Attorney General of Arkansas; Carl B. Afelio, Attorney General of Connecticut; Richard B. Wier, Jr., Attorney General of Delaware; Robert L. Shevin, Attorney General of Florida; Ronald Y. Amemiya, Attorney General of Hawaii; Wayne L. Kidwell, Attorney General of Idaho; William J. Scott, Attorney General of Illinois; Curt T. Schneider, Attorney General of Kansas; Robert F. Stephens, Attorney General of Kentucky; William J. Guste, Jr., Attorney General of Louisiana; Joseph E. Brennan, Attorney General of Maine; Francis B. Burch, Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan; A. F. Summer, Attorney General of Mississippi; John D. Ashcroft, Attorney General of Missouri; Paul L. Douglas, Attorney General of Nebraska; Robert List, Attorney General of Nevada; Thomas D. Rath, Attorney General of New Hampshire; Toney Anaya, Attorney General of New Mexico; Louis J. Lefkowitz, Attorney General of New York; Rufus L. Edmisten, Attorney General of North Carolina; Allen I. Olson, Attorney General of North Dakota; William J. Brown, Attorney General of Ohio; James A. Redden, Attorney General of Oregon; Daniel R. McLeod, Attorney General of South Carolina; William Janklow, Attorney General of South Dakota; William M. Leech, Jr., Attorney General of Tennessee; Robert B. Hansen, Attorney General of Utah; M. Jerome Diamond, Attorney General of Vermont; J. Marshall Coleman, Attorney General of Virginia; Slade Gorton, Attorney General of Washington; Chauncey H. Browning, Jr., Attorney General of West Virginia; Bronson C. La Follette, Attorney General of Wisconsin; John J. Rooney, Acting Attorney General of Wyoming, and Jack D. Palma II, Senior Assistant Attorney General. Robert S. Pelcyger, Richard B. Collins, and Arthur Lazarus, Jr., filed a brief for the Native American Rights Fund et al. as amici curiae urging affirmance in both cases. John C. Christie, Jr., Charles T. Martin, and Stephen J. Landes filed a brief for the American Land Title Assn, as amicus curiae in both cases. A brief of amici curiae was filed in No. 78-161 for their respective States by Evelle J. Younger, Attorney General of California, N. Gregory Taylor, Assistant Attorney General, and John Briscoe and Bruce S. Flushman, Deputy Attorneys General; John L. Hill, Attorney General of Texas; Mike Greely, Attorney General of Montana; Warren Spannaus, Attorney General of Minnesota; Gerald Gornish, Attorney General of Pennsylvania; and J. D. MacFarlane, Attorney General of Colorado, and David W. Bobbins, Deputy Attorney General. Mr. Justice White delivered the opinion of the Court. At issue here is the ownership of a tract of land on the east bank of the Missouri River in Iowa. Respondent Omaha Indian Tribe, supported by the United States as trustee of the Tribe’s reservation lands, claims the tract as part of reservation lands created for it under an 1854 treaty. Petitioners, including the State of Iowa and several individuals, argue that past movements of the Missouri River washed away part of the reservation and the soil accreted to the Iowa side of the river, vesting title in them as riparian landowners. Two principal issues are presented. First, we are faced with novel questions regarding the interpretation and scope of Rev. Stat. § 2126, as set forth in 25 U. S. C. § 194, a 145-year-old, but seldom used, statute that provides: “In all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.” Second, we must decide whether federal or state law determines whether the critical changes in the course of the Missouri River in this case were accretive or avulsive. I In 1854, the Omaha Indian Tribe ceded most of its aboriginal lands by treaty to the United States in exchange for money and assistance to enable the Tribe to cultivate its retained lands. Treaty of Mar. 16, 1854, 10 Stat. 1043; see United States v. Omaha Indians, 253 U. S. 275, 277-278 (1920). The retained lands proved unsatisfactory to the Tribe, and it exercised its option under the treaty to exchange those lands for a tract of 300,000 acres to be designated by the President and acceptable to the Tribe. The Blackbird Hills area, on the west bank of the Missouri, all of which was then part of the Territory of Nebraska, was selected. The eastern boundary of the reservation was fixed as the center of the main channel of the Missouri River, the thalweg. That land, as modified by a subsequent treaty and statutes, has remained the home of the Omaha Indian Tribe. In 1867, a survey by T. H. Barrett of the General Land Office established that the reservation included a large peninsula jutting east toward the opposite, Iowa, side of the river, around which the river flowed in an oxbow curve known as Blackbird Bend. Over the next few decades, the river changed course several times, sometimes moving east, sometimes west. Since 1927, the river has been west of its 1867 position, leaving most of the Barrett survey area on the Iowa side of the river, separated from the rest of the reservation. As the area, now on the Iowa side, dried out, Iowa residents settled on, improved, and farmed it. These non-Indian owners and their successors in title occupied the land for many years prior to April 2, 1975, when they were dispossessed by the Tribe, with the assistance of the Bureau of Indian Affairs. Four lawsuits followed the seizure, three in federal court and one in state court. The Federal District Court for the Northern District of Iowa consolidated the three federal actions, severed claims to damages and lands outside the Barrett survey area, and issued a temporary injunction that permitted the Tribe to continue possession. The court then tried the case without a jury. At trial, the Government and the Tribe argued that the river’s movement had been avul-sive, and therefore the change in location of the river had not affected the boundary of the reservation. Petitioners argued that the river had gradually eroded the reservation lands on the west bank of the river, and that the disputed land on the east bank, in Iowa, had been formed by gradual accretion and belonged to the east-bank riparian owners. Both sides sought to quiet title in their names. The District Court concluded that state rather than federal law should be the basis of decision. United States v. Wilson, 433 F. Supp. 57 (1977). The court interpreted the Rules of Decision Act, 28 U. S. C. § 1652, as not requiring the application of federal law in land disputes, even though the United States and an Indian tribe were claimants, unless the Constitution, a treaty, or an Act of Congress specifically supplanted state law. The court found no indication in those sources that federal law was to govern. It then went on to conclude that 25 U. S. C. § 194 was not applicable to the case because it was impossible for the Tribe to make out a prima facie case that it possessed the disputed lands in the past without proving its case on the merits. Thus, § 194 had no significance because it was “inextricably entwined with the merits.” 433 F. Supp., at 66. Applying Nebraska law, which places the burden of proof on the party seeking to quiet title, the court concluded that the key changes in the river had been accretive, and that the east-bank riparians, the petitioners, were thus the owners of the disputed area. 433 F. Supp. 67 (1977). The Court of Appeals reversed. 575 F. 2d 620 (CA8 1978). It began by ruling that the District Court should have applied federal rather than state law for two distinct reasons. First, the boundary of the reservation was coincidental with an interstate boundary at the time the river moved. Therefore, under Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 375 (1977), and other cases of this Court, the governing law is federal because “[t]he rendering of a decision in a private dispute which would ‘press back’ an interstate boundary sufficiently implicates the interests of the states to require the application of federal common law.” 575 F. 2d, at 628. Second, the Court of Appeals construed our decision in Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 677 (1974), as requiring the application of federal law because the Tribe asserted a right to reservation land based directly on the 1854 treaty and therefore arising under and protected by federal law. The Court of Appeals also ruled that the District Court had erred by refusing to apply 25 U. S. C. § 194. Because the Tribe had proved that the 1854 treaty included the land area within the Barrett survey, it had made a sufficient showing of “previous possession or ownership” to invoke the statute and place the burden of proof on petitioners. Adopting the District Court’s construction “would negate the application of the § 194 statutory burden upon a pleading that simply recites Indian land had been destroyed by the erosive action of a river.” 575 F. 2d, at 631. Reviewing what it perceived to be the federal common law of accretion and avulsion and with no more than passing reference to Nebraska law on the issue, the Court of Appeals concluded that the District Court had based its ruling on a too narrow definition of avulsion. The court then applied the law to the evidence and found that the evidence was in equipoise. Because § 194 placed the burden of proof on the non-Indians, however, the court ruled that judgment must be entered for the Tribe. We granted separate petitions for certiorari filed by the State of Iowa and its Conservation Commission in No. 78-161 and by the individual petitioners in No. 78-160, but limited to the questions whether 25 U. S. C. § 194 is applicable in the circumstances of this litigation, in particular with respect to the State of Iowa, and whether federal or state law governs the substantive aspects of these cases. 439 U. S. 963 (1978). We are in partial, but serious, disagreement with the Court of Appeals, and vacate its judgment. II Petitioners challenge on several grounds the Court of Appeals’ construction and application of § 194 to these cases. First, they argue that by its plain language the section does not apply when an Indian tribe, rather than one or more individual Indians, is the litigant. We think the argument is untenable. The provision first appeared in slightly different form in 1822, Act of May 6, 1822, 3 Stat. 683, as part of an Act amending the 1802 Indian Trade and Intercourse Act, Act of Mar. 30, 1802, 2 Stat. 139, which was one of a series of Acts originating in 1790 and designed to regulate trade and other forms of intercourse between the North American Indian tribes and non-Indians. Because of recurring trespass upon and illegal occupancy of Indian territory, a major purpose of these Acts as they developed was to protect the rights of Indians to their properties. Among other things, non-Indians were prohibited from settling on tribal properties, and the use of force was authorized to remove persons who violated these restrictions. The 1822 provision was part of this design ; and with only slight change in wording, it was incorporated in the 1834 consolidation of the various statutes dealing with Indian affairs. Act of June 30, 1834, 4 Stat. 729. Section 22 of that Act is now 25 U. S. C. § 194, already set out in this opinion. Although the word “Indian” in the second line of § 22 of the 1834 Act replaced the word “Indians” in the 1822 provision, there is no indication that any change in meaning was intended; and none should be implied at this late date, particularly in light of 1 U. S. C. § 1, which provides that unless the context indicates otherwise, “words importing the singular include and apply to several persons, parties, or things.” Even construed as including the plural, however, it is urged that the word “Indians” does not literally include an Indian tribe, and that it is plain from other provisions of the Act that Congress intended to distinguish between Indian tribes and individual Indians. But as we see it, this proves too much. At the time of the enactment of the predecessors of § 194, Indian land ownership was primarily tribal ownership; aboriginal title, a possessory right, was recognized and was extinguishable only by agreement with the tribes with the consent of the United States. Oneida Indian Nation v. County of Oneida, 414 U. S., at 669-670. Typically, this was accomplished by treaty between the United States and the tribe, and typically the land reserved or otherwise set aside was held in trust by the United States for the tribe itself. “ 'Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.’ ” United States v. Jim, 409 U. S. 80, 82 (1972), quoting Cherokee Nation v. Hitchcock, 187 U. S. 294, 307 (1902). It is clear enough that, when enacted, Congress intended the 1822 and 1834 provisions to protect Indians from claims made by non-Indian squatters on their lands. To limit the force of these provisions to lands held by individual Indians would be to drain them of all significance, given the historical fact that at the time of the enactment virtually all Indian land was tribally held. Legislation dealing with Indian affairs “cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted [it].” Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 206 (1978). Furthermore, “'statutes passed for the benefit of dependent Indian tribes... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.' ” Bryan v. Itasca County, 426 U. S. 373, 392 (1976), quoting Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918). The second argument, presented in its most acute form by the State of Iowa, is that § 194 applies only where the Indians' antagonist is an individual white person and has no force at all where the adverse claimant is an artificial entity. We cannot accept this broad submission. The word “person” for purposes of statutory construction, unless the context indicates to the contrary, is normally construed to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U. S. C. § 1. And in terms of the protective purposes of the Acts of which § 194 and its predecessors were a part, it would make little sense to construe the provision so that individuals, otherwise subject to its burdens, could escape its reach merely by incorporating and carrying on business as usual. As we said in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 687 (1978), “by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.” It stands to reason that in re-enacting this provision in the Revised Statutes, now codified in the United States Code, Congress was fully aware that it would be interpreted to cover artificial entities as well as individuals. It nevertheless does not follow that the “white persons” to whom will be shifted the burden of proof in title litigation with Indians also include the sovereign States of the Union. “[I]n common usage, the term 'person’ does not include the sovereign, [and] statutes employing the phrase are ordinarily construed to exclude it.” United States v. Cooper Corp., 312 U. S. 600, 604 (1941); accord, United States v. Mine Workers, 330 U. S. 258, 275 (1947). Particularly is this true where the statute imposes a burden or limitation, as distinguished from conferring a benefit or advantage. United States v. Knight, 14 Pet. 301, 315 (1840). There is nevertheless “no hard and fast rule of exclusion,” United States v. Cooper Corp., supra, at 604-605; and much depends on the context, the subject matter, legislative history, and executive interpretation. The legislative history here is uninformative, and executive interpretation is unhelpful with respect to this dormant statute. But in terms of the purpose of the provision — that of preventing and providing remedies against non-Indian squatters on Indian lands — it is doubtful that Congress anticipated such threats from the States themselves or intended to handicap the States so as to offset the likelihood of unfair advantage. Indeed, the 1834 Act, which included § 22, the provision identical to the present § 194, was “intended to apply to the whole Indian country, as defined in the first section.” H. R. Rep. No. 474, 23d Cong., 1st Sess., 10 (1834). Section 1 defined Indian country as being “all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi River, and not within any state to which the Indian title has not been extinguished... 4 Stat. 729. Although this definition was discarded in the Revised Statutes, see Rev. Stat. § 5596, it is apparent that in adopting § 22 Congress had in mind only disputes arising in Indian country, disputes that would not arise in or involve any of the States. Nor have we discovered anything since its passage or in connection with the definition of Indian country now contained in the Criminal Code, 18 U. S. C. § 1151, indicating that Congress intended the words “white person” in § 194 to include any of the original or any of the newly admitted States of the Union. We hesitate, therefore, to hold that the State of Iowa must necessarily be disadvantaged by § 194 when litigating title to the property to which it claims ownership, particularly where its opposition is an organized Indian tribe litigating with the help of the United States of America. It may well be that a State, like other litigants and like the State of Iowa did in this case, will often bear the burden of proof on various issues in litigating the title to real estate. But § 194 operates regardless of the circumstances once the Tribe or its champion, the United States, has demonstrated that the Tribe was once in possession of or had title to the area under dispute. Petitioners also defend the refusal of the District Court to apply § 194 on the grounds that a precondition to applying it is proof of prior possession or title in the Indians and that this involves the merits of the issue on which this case turns— whether the changes in the river were avulsive or accretive. We think the Court of Appeals had the better view of the statute in this regard. Section 194 is triggered once the Tribe makes out a prima facie case of prior possession or title to the particular area under dispute. The usual way of describing real property is by identifying an area on the surface of the earth through the use of natural or artificial monuments. There seems to be no question here that the area within the Barrett survey was once riparian land lying on the west bank of the Missouri River and was long occupied by the Tribe as part of the reservation set apart for it in consequence of the treaty of 1854. This was enough, it seems to us, to bring § 194 into play. Of course, that would not foreclose the State of Iowa from offering sufficient evidence to prove its own title or from prevailing on any affirmative defenses it may have. Petitioners also assert that even if § 194 is operative and even if the Tribe has made out its prima facie case, only the burden of going forward with the evidence, and not the burden of persuasion, is shifted to the State. Therefore they, the petitioners, should prevail if the evidence is in equipoise. The term “burden of proof” may well be an ambiguous term connoting either the burden of going forward with the evidence, the burden of persuasion, or both. But in view of the evident purpose of the statute and its use of the term “presumption” which the “white man” must overcome, we are in agreement with the two courts below that § 194 contemplates the non-Indian’s shouldering the burden of persuasion as well as the burden of producing evidence once the tribe has made out its prima facie case of prior title or possession. Ill A In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363 (1977), this Court held that, absent an overriding federal interest, the laws of the several States determine the ownership of the banks and shores of waterways. This was expressive of the general rule with respect to the incidents of federal land grants: “ 'We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.' ” Id., at 377, quoting Wilcox v. Jackson, 13 Pet. 498, 517 (1839) (emphasis added by the Corvallis Court). The Court’s conclusion in the particular dispute before it in Corvallis was that state law governed the rights of the riparian owner because there was no claim of an applicable federal right other than the equal-footing origin of the State’s title. As the Court of Appeals held, however, the general rule recognized by Corvallis does not oust federal law in this case. Here, we are not dealing with land titles merely derived from a federal grant, but with land with respect to which the United States has never yielded title or terminated its interest. The area within the survey was part of land to which the Omahas had held aboriginal title and which was reserved by the Tribe and designated by the United States as a reservation and the Tribe’s permanent home. The United States continues to hold the reservation lands in trust for the Tribe and to recognize the Tribe pursuant to the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 461 et se.q. In these circumstances, where the Government has never parted with title and its interest in the property continues, the Indians’ right to the property depends on federal law, “wholly apart from the application of state law principles which normally and separately protect a valid right of possession.” Oneida Indian Nation v. County of Oneida, 414 U. S., at 677. It is rudimentary that “Indian title is a matter of federal law and can be extinguished only with federal consent” and that the termination of the protection that federal law, treaties, and statutes extend to Indian occupancy is “exclusively the province of federal law.” Id,., at 670. Insofar as the applicable law is concerned, therefore, the claims of the Omahas are “clearly distinguishable from the claims of land grantees for whom the Federal Government has taken no such responsibility.” Id., at 684 (RehNQUIst, J., concurring). This is not a case where the United States has patented or otherwise granted lands to private owners in a manner that terminates its interest and subjects the grantees’ incidents of ownership to determination by the applicable state law. The issue here is whether the Tribe is no longer entitled to possession of an area that in the past was con-cededly part of the reservation as originally established. That question, under Oneida, is a matter for the federal law to decide. B Although we have determined that federal law ultimately controls the issue in this case, it is still true that “[c]ontro-versies... governed by federal law, do not inevitably require resort to uniform federal rules.... Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy 'dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.' ” United States v. Kimbell Foods, Inc., 440 U. S. 715, 727-728 (1979), quoting United States v. Standard Oil Co., 332 U. S. 301, 310 (1947). The Court of Appeals, noting the existence of a body of federal law necessarily developed by this Court in the course of adjudicating boundary disputes between States having their common border on a navigable stream, purported to find in those doctrines the legal standards to apply in deciding whether the changes in the course of the Missouri River involved in this case had been avulsive or ac-cretive in nature. The federal law applied in boundary cases, however, does not necessarily furnish the appropriate rules to govern this case. No dispute between Iowa and Nebraska as to their common border on or near the Missouri River is involved here. The location of that border on the ground was settled by Compact in 1943 and by further litigation in this Court, Nebraska v. Iowa, 406 U. S. 117 (1972). The federal interest in this respect has thus been satisfied, except to the extent that the Compact itself may bear upon a dispute such as this. United States v. Kimbell Foods, Inc., supra, advises that at this juncture we should consider whether there is need for a nationally uniform body of law to apply in situations comparable to this, whether application of state law would frustrate federal policy or functions, and the impact a federal rule might have on existing relationships under state law. An application of these factors suggests to us that state law should be borrowed as the federal rule of decision here. First, we perceive no need for a uniform national rule to determine whether changes in the course of a river affecting riparian land owned or possessed by the United States or by an Indian tribe have been avulsive or accretive. For this purpose, we see little reason why federal interests should not be treated under the same rules of property that apply to private persons holding property in the same area by virtue of state, rather than federal, law. It is true that States may differ among themselves with respect to the rules that will identify and distinguish between avulsions and accretions, but as long as the applicable standard is applied evenhandedly to particular disputes, we discern no imperative need to develop a general body of federal common law to decide cases such as this, where an interstate boundary is not in dispute. We should not accept “generalized pleas for uniformity as substitutes for concrete evidence that adopting state law would adversely affect [federal interests].” United States v. Kimbell Foods, Inc., supra, at 730. Furthermore, given equitable application of state law, there is little likelihood of injury to federal trust responsibilities or to tribal possessory interests. On some occasions, Indian tribes may lose some land because of the application of a particular state rule of accretion and avulsion, but it is as likely on other occasions that the tribe will stand to gain. The same would be the case under a federal rule, including the rule that the Court of Appeals announced in this case. The United States fears a hostile and unfavorable treatment at the hands of state law, but, as we have said, the legal issues are federal and the federal courts will have jurisdiction to hear them. Oneida Indian Nation v. County of Oneida, 414 U. S. 661 (1974). Adequate means are thus available to insure fair treatment of tribal and federal interests. This is also an area in which the States have substantial interest in having their own law resolve controversies such as these. Private landowners rely on state real property law when purchasing real property, whether riparian land or not. There is considerable merit in not having the reasonable expectations of these private landowners upset by the vagaries of being located adjacent to or across from Indian reservations or other property in which the United States has a substantial interest. Borrowing state law will also avoid arriving at one answer to the avulsive-accretion riddle in disputes involving Indians on one side and possibly quite different answers with respect to neighboring land where non-Indians are the disputants. Indeed, in this case several hundred acres of land within the Barrett survey are held in fee, and concededly are not Indian property. These tracts would not be governed by the federal rule announced by the Court of Appeals. We have borrowed state law in Indian cases before. In Board of Comm’rs v. United States, 308 U. S. 343 (1939), the question was what law, federal or state, would apply in a claim to recover taxes improperly levied by a political subdivision of a State upon Indians’ trust lands. The Court observed that “[s]ince the origin of the right to be enforced is the Treaty, plainly whatever rule we fashion is ultimately attributable to the Constitution, treaties or statutes of the United States, and does not owe its authority to the law-making agencies of Kansas.” Id., at 349-350. The Court, nevertheless, elected to adopt state law as the federal rule of decision. There was no reason in the circumstances of the case for the beneficiaries of federal rights to have a privileged position over other aggrieved taxpayers, and “[t]o respect the law of interest prevailing in Kansas in no wise impinges upon the exemption which the Treaty of 1861 has commanded Kansas to respect and the federal courts to vindicate.” The importance of attending to state law, once an interstate boundary has been determined, is underlined by Arkansas v. Tennessee, 246 U. S. 158 (1918). In that case, because the disputed boundary between Arkansas and Tennessee had been determined, the question of title to riparian land and to the river bottom was a matter to be determined by local law: “How the land that emerges on either side of an interstate boundary stream shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adajacent to them.... But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located.” Id., at 175-176. Likewise, in the present case, the Compact of 1943 settled the location of the interstate boundary, within and without the river; and the question of land ownership within or adjacent to the river is best settled by reference to local law even where Indian trust land, a creature of the federal law, is involved. C The passage quoted above from Arkansas v. Tennessee was quoted with approval in Nebraska v. Iowa, 406 U. S., at 126-127, where the central question was the interpretation of the Interstate Compact determining the location of the entire border between Nebraska and Iowa. Our opinion in Nebraska v. Iowa is also instructive with respect to which state law, Iowa or Nebraska, the federal court should refer to in determining the federal standard applicable to this case. Under § 2 of the Compact, each State ceded to the other and relinquished jurisdiction over all lands within the Compact boundary of the other State. Under § 3, “Titles, mortgages, and other liens” affecting such lands that are “good in” the ceding State “shall be good in” the other State. Thus, ceded lands east of the Compact line came under Iowa jurisdiction; but Iowa was obligated to respect title to any-ceded land east of the new boundary if that title was “good in” Nebraska. Accepting the Special Master’s recommendations in this respect, the Court ruled that one claiming a Nebraska title to land east of the Compact line need show only “good title” under Nebraska law and need not also prove either the location of the original boundary between the two States or that the land at issue was on the Nebraska side of that original boundary. The Court further ruled, in agreement with the Special Master, that in litigating with private claimants seeking to prove good Nebraska title to land east of the Compact line, the State of Iowa was disentitled to rely on certain doctrines of Iowa common law bearing on riparian land ownership. In this case, the District Court ruled that even though the United States and an Indian tribe rather than private parties were plaintiffs, title Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
songer_state	11	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". BRUNER v. UNITED STATES. No. 13411. United States Court of Appeals Fifth Circuit. June 1, 1951. Denmark Groover, Jr., Thos. W. Johnson, Macon, Ga., for appellant Irvin M. Gottlieb, Atty. Department of Justice, Washington, D. C., John P. Co-wart, U. S. Atty., James H. Fort, Asst. U. S. Atty., Macon, Ga., for appellee. Before HUTCHESON, Chief Judge, and SIBLEY and STRUM, Circuit Judges. PER CURIAM. Brought under the Tucker Act, 28 U.S.C. § 1346(d) (2), to recover moneys claimed to be due plaintiff for services rendered under contract with the United States and not paid for, plaintiff’s suit was met by a motion to dismiss on the ground that, under the controlling decision in this circuit, Kennedy v. United States, 146 F.2d 26, plaintiff was an officer of the United States, and the court was without jurisdiction. The district judge, on evidence sufficient to support his conclusion, found: that the plaintiff was appointed by the Secretary of War, pursuant to Art. II, Sec. 2, Clause 2, of the Constitution; that he was an officer of the United States; and that the court was without jurisdiction of his claim. So determining, he dismissed the suit on that ground, and this appeal followed. We agree that the case is ruled by Kennedy v. United States, supra, and that the judgment should be affirmed. Affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_interven	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 whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case. SAGE et al. v. PARKERSBURG RIG & REEL CO. No. 1306. Circuit Court of Appeals, Tenth Circuit. Dec. 20, 1935. Chas. G. Yankey, of Wichita, Kan. (Harvey C. Osborne, John G- Sears, Jr., Verne M. Laing, all of Wichita, Kan., on the brief), for appellants. A. C. Paul, of Minneapolis, Minn. (C. L. Parker, of Washington, D. C., and Austin M. Cowan, of Wichita, Kan., on the brief), for appellee. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. Rehearing denied March 11, 1936. PHILLIPS, Circuit Judge. • Sage and Boughner brought this suit against the Parkersburg Company for alleged infringement of Patent No. 1,476,-648, applied for October 11, 1923, relating to a sand reel mechanism in combination with a standard oil well drilling rig. The elements of claim one of the patent are: In combination with a standard well drilling rig including a derrick, a sheave at its top, front and back jack posts, a band wheel shaft and a band wheel, a sand reel mechanism consisting of, (1) A driven shaft, (2) a sand reel spool on the driven shaft in line with the sheave, (3) a sand line on the spool passing through the sheave so there will be a direct pull on the line at all times, (4) driving connections between the band wheel shaft and the driven shaft, including slip clutch means whereby the band" wheel shaft may slip with respect to the spool. Claim two, differs from claim one, only in that the driving connection is positioned between the front jack post and the band wheel. Claim three, differs from claim one, in that the driving mechanism is described as sprockets loose on the band wheel shaft and the sand reel shaft, a chain connecting the sprockets, and clutches for connecting the sprockets to the shafts, one of which is a friction clutch, and it includes means for controlling the frictional engagement of the friction clutch. Claim four differs from three, only m that it provides for both clutches being of the friction type. The standard rig is employed in the “up and down” method of drilling as distinguished from the rotary method of drilling. In the up and down method a bit is alternately raised and dropped in the hole by means of a cable. In drilling with standard tools, the hole at the surface is relatively large. When it becomes necessary, a string of casing is set and the drilling resumed with a smaller bit, reducing the size of the hole below the lower end of the casing; this is repeated until the desired depth is reached. Thus a hole may be twenty inches in diameter at the surface and be reduced to five inches in diameter at the lower end. In cable tool drilling, the bit cuttings are mixed with water to put them in a fluid condition so they can be removed by a bailer. The bailer consists oí a long pipe with a valve at the lower end, which opens as the bailer is lowered into the hole, permitting bit cuttings, mud and water to enter the bailer and closes to retain them in the bailer when it is raised in the hole. Below each string of casing a bailer slightly larger than the next string of casing to be set is used. If the bailer passes down through the hole, the drillers know the hole is large enough to permit the casing to enter. A standard rig consists of a derrick, power plant and operating mechanism. A sufficient number of sheaves or pulleys are located at the top of the derrick to carry the cables employed. The power for operating a standard rig is taken from a shaft known as the band wheel shaft or crank shaft, positioned adjacent to the derrick. On the opposite side and adjacent to the base of the derrick is located a large hoisting drum, commonly called a bull wheel, to which is attached a cable by means of which the drill is lowered into, and raised from the hole. The band wheel shaft is journaled in bearings supported by vertical posts known as jack posts. Keyed to the shaft between the two jack posts is a large wheel known as a band wheel. This wheel is driven by a belt connected to the power plant. The power plant is located at the rear of the derrick beyond the band wheel shaft. A walk is usually constructed from the floor of the derrick to the power plant. It passes by one of the jack posts. The side of the rig where the walk is located is called the "walk” or “front side” and the other the “back side.” The jack post nearest the walk is called the front jack post, and the other the back jack post. On the face of the band wheel nearest the back jack post is a grooved pulley member, called a tugwheel. The grooves in the periphery of the tugwheel are connected by a rope belt with a similar member attached to the bull wheel, and by means thereof, the latter is driven. A vertical post, commonly called a “Sampson post,” acts as a fulcrum for a walking beam. One end of the beam is positioned directly over the hole in the center of the derrick, and has means by which the drilling cable may be attached to it. The other end of the beam extends beyond the side of the derrick at a right angle thereto, and is connected by a pitman rod to the end of a crank on the band wheel shaft. By this means a reciprocal up and down motion is imparted to the beam as the shaft revolves, thus giving the churning motion to the drill stem and bit. Between the power plant and the band wheel shaft, is located a sand reel which consists of a shaft journaled in bearings on vertical supports, a spool mounted on the shaft and means for driving the shaft from the band wheel shaft. The spool has a live side and a reserve side on which the sand line is spooled. This is essential because a larger and heavier bailer is used at the top of the hole, and the smaller the diameter of the spool the less power it takes to drive it. Up to about 1920 the means for driving the sand reel shaft was a friction pulley mounted on such shaft, which engaged the periphery, or outer face of the band wheel. One end of the sand reel shaft was journaled in a knuckle post. It was connected with a lever on the derrick floor. By moving the lever backward, away from the sand reel, the friction pulley could be brought into gradual contact with the band wheel and the pull on the sand line regulated. By moving it in the opposite direction the spool could be released and brought in contact with a brake permitting the bailer to descend, by gravity into the hole, regulated by the brake. In the early type of standard rigs the sand reel was positioned on the back side; the spool was mounted on the back side end of the sand reel shaft and the friction pulley on the other end. This threw the reel out of line with the top of the derrick and the shaft had to be set at an angle to the face of the band wheel to obtain even spooling. This necessitated the use of a bevel faced friction pulley. Later sand reels were also positioned on the walk side, placing the’ reel in line with the derrick and making possible the use of a straight faced friction pulley. , The band wheels were made of wood. The slipping of the friction pulley caused excessive wear on the face of the band wheel. Notwithstanding this, the above types of construction were generally used up to 1920. On July 18, 1921, the plaintiffs filed application No. 485,438 for a patent on improvements in drilling rig sand reels. In the device covered by such application, and the first experimental sand reel constructed by plaintiffs, the driven sprocket was rigidly attached to the sand reel shaft and no provision was made for a clutch on the sand reel shaft. The application was rejected on the ground the device was inoperative. The application for the patent in suit stated that it was a continuation of application No. 485,438. Plaintiffs made a drawing of the device of the patent in suit in April 1921, and completed an experimental device on September 27, 1921. In 1922 they completed a commercial device. In the latter part of 1919, defendant pro- ■ posed to the Texas Company that it try out a chain driven walk side sand reel. The Texas Company agreed. In 1920, Lockhart, Vice President of defendant, designed both a back side and walk side chain driven reel, but concluded to try a back side reel first, believing it would meet with approval of more operators. Defendant prepared drawings and constructed a back side chain driven sand reel. On December 1, 1920, Lockhart applied for a patent on a back side chain driven sand reel. The patent was granted January 3, 1922. In February 1921, defendant sent Bloss, its chief engineer to Texas to install the experimental rig for the Texas Company. It was installed in the early part of March 1921 in accordance with the drawing made August 9, 1920. The jack posts were place'd closer together, and the keyway in the band wheel shaft was lengthened. A driving sprocket was mounted on the back side end of such shaft, and a driven sprocket on the sand reel shaft. There was a jaw clutch on the band wheel shaft shiftable into engagement with the driving sprocket, and a friction clutch on the sand reel' shaft shiftable into engagement with the driven sprocket. The reel being a back side reel did not spool properly when the sand reel shaft was set parallel to the band wheel shaft. To overcome this defect the back side end of the sand reel shaft was moved toward the derrick. This effected proper alignment of the spool with the sheave on top of the derrick, but brought the sprocket on the sand reel shaft out of line with the driving sprocket on the band wheel shaft, and caused wear on the sprockets. The device was used until the well was drilled 1200 feet. Bloss, on March 11, 1921, recommended that the device be changed from a back side to a walk side reel. About May 1, 1921,- the proposed change was made. By changing to a walk side construction, the spool was brought into line with the sheave on the derrick and the two sprockets were placed in alignment. The driving sprocket, however, was still mounted on the rear end of the band wheel shaft. After such change, the reel was a success. It was used to complete the well where it was constructed, ,and during the summer of 1921, it was used successfully in other drilling operations. Early in 1922 defendant commenced the manufacture of chain driven sand reels, substantially like the experimental reel above described after the change to a walk side reel. In the latter part of 1922, defendant changed the location of its driving sprocket and clutch on the band wheel shaft, from the rear end of the shaft to a position between the band wheel and the front jack post. This permitted the use of a shorter sand reel shaft. Plaintiffs make no claim of infringement until defendant changed the position of the driving sprocket and clutch and mounted them on the band wheel shaft between the band wheel and the front jack post. They claim- that by mounting the driving sprocket at that point, there is less strain on the band wheel shaft, and the sand reel shaft is shortened, reducing vibration. Defendant contends that such change involved only mechanical skill. The master and trial court so found, and adjudged plaintiffs’ patent invalid. This finding is supported by persuasive evidence. Steen, Chief Engineer of the Texas Company, in a letter to defendant dated September 23, 1920, stated: “By leaving the sand reel as located we can place a sprocket on the shaft between the band wheel and the shaft bearing, which will avoid the over-hang and reduce the chance of springing the shaft, * * In a report to defendant, dated May 14, 1921, Anderson of the Texas Company said: “I believe the scheme of placing the clutch on the crank side of the band wheel either by bolting a clutch jaw on or having clutch and flange made, would be preferable to having the clutch on the other side as by doing this it would no doubt shorten the sand reel shaft a little and it would put the whole thing where the driller could see it.” In a letter dated September 6, 1921, to the Texas Company, Lockhart said: “Now that the principle of this friction clutch has been demonstrated, we wish you would raise the question with your Engineering department if they do not think it would be advisable for us to furnish a split combined bull wheel flanged and sprocket wheel for the walk side of the band wheel to drive this friction clutch chain driven sand reel.” The defendant designed, and about May 1, 1921, constructed a walk side chain driven sand reel. Immediately thereafter it was successfully and publicly used by the Texas Company in its drilling operations. This public use antedated plaintiffs’ conception and the application for their patent. The change of the location of the driving sprocket and associated clutch from the back side end of the band wheel shaft to a point on such shaft between the band wheel and the front jack post was a mere mechanical rearrangement of the elements of defendant’s prior device, wherein each element performs the same function in the same way to accomplish the same result as in such prior device. While it improved the device and increased its efficiency, it merely carried forward the idea of the earlier device and involved no new inventive conception or principle. We conclude the improvement in plaintiffs’ device over the earlier device of defendant involved the exercise only of mechanical skill and that the patent in suit is void for want of novelty. The decree is affirmed. A mere change in an existing device involving a difference only in form, proportions or degree, and resulting in doing substantially the same thing in the same way, by substantially the same means, is not invention although better results are secured. Such changes amount only to a mere carrying forward or more extended application of an earlier idea or conception of another. Railroad Supply Co. v. Elyria Iron & Steel Co., 244 U.S. 285, 292, 37 S.Ct. 502, 61 L.Ed. 1136; B. F. Goodrich Rubber Co. v. Gates Rubber Go. (C.C.A. 10) 54 F.(2d) 580, 583; Linville v. Milberger (C.C.A. 10) 34 F.(2d) 386, 389; Midland Flour Milling Co. v. Bobbitt (C.C.A. 8) 70 F.(2d) 416; In re Williams (Cust & Pat.App.) 36 F.(2d) 436, 438; George F. Hinrichs, Inc., v. Henderson (C.C.A. 8) 32 F.(2d) 655, 657. See, also, Lees-Bradner Co. v. National Tool Co. (C.C.A. 6) 52 F.(2d) 782, and Mills v. United States, 75 Ct.Cl. 256. Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case? A. no intervenor in case B. intervenor = appellant C. intervenor = respondent D. yes, both appellant & respondent E. not applicable Answer:
songer_r_natpr	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 "natural persons". 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. E.K. WILCOX, Jr., Petitioner-Appellee, Cross-Appellant, v. J. Paul FORD, Warden, Respondent-Appellant, Cross-Appellee. No. 86-8060. United States Court of Appeals, Eleventh Circuit. April 3, 1987. William B. Hill, Jr., Sr. Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee. Bobby Lee Cook, Summerville, Ga., Wilby C. Coleman, Valdosta, Ga., James F. Wyatt, III, Charlotte, N.C., for petitionerappellee, cross-appellant. Before FAY and JOHNSON, Circuit Judges, and HENDERSON, Senior Circuit Judge. JOHNSON, Circuit Judge: This is an appeal taken by Warden J. Paul Ford from a district court order granting habeas corpus relief to appellee E.K. Wilcox, Jr., 626 F.Supp. 760 (1985). Ford also appeals the district court’s decision to grant bail to Wilcox. Wilcox cross-appeals the district court’s dismissal of the remaining claims in his petition. We reverse the portion of the district court’s opinion granting habeas corpus relief, affirm the portion of the district court’s opinion denying habeas corpus relief, and reverse the district court’s order granting bail to the appellee. E.K. Wilcox, Jr., was indicted by a grand jury in Lowndes County, Georgia, in March 1981 for the murder of Hellen Hanks and the unlawful concealment of her death. Wilcox was tried before a jury and found guilty on both counts. A summary of the critical facts developed at trial is attached to this opinion as an appendix. Wilcox was sentenced to life imprisonment for the murder and to a consecutive twelve month sentence for unlawful concealment of a death. Wilcox appealed to the Supreme Court of Georgia. His conviction was affirmed. Wilcox v. State, 250 Ga. 745, 301 S.E.2d 251 (1983). He then filed a writ of habeas corpus in the Superior Court of Muscogee County, Georgia. The court held a hearing on the petition for relief on November 17, 1983. The petition was denied on March 9, 1984. The Supreme Court of Georgia then denied Wilcox’s application for a certificate of probable cause to appeal the decision of the state habeas court. Wilcox filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Georgia on September 17, 1984. The application set forth six grounds for relief: 1) the state obtained his conviction with insufficient evidence; 2) the police investigation of the crime involved police misconduct so fundamentally unfair that it violated due process; 3) the trial court improperly prohibited Wilcox’s counsel from questioning two veniremen concerning their leanings as to which party ought to prevail; 4) the trial court erred in failing to strike for cause two veniremen who admitted on voir dire that they had a preconceived notion that Wilcox was guilty; 5) the admission of testimony coerced from two Wilcox employees (Wrentz and Marshall) violated Wilcox’s due process rights; and 6) the false answer during voir dire of a venireman eventually selected to sit as a juror violated Wilcox’s Sixth Amendment and due process rights. On July 9,1985, the district court held an evidentiary hearing on the question of whether Wrentz’s and Marshall’s testimony had been coerced. On December 20, 1985, the district court granted the application for habeas relief. Ten days later, on December 30, 1985, the federal habeas court also ordered that Wilcox be released on bond. The district court granted the writ on the first two grounds for relief asserted in the petition and dismissed the other four claims as meritless. The district court held that the Jackson v. Virginia standard was not satisfied by the evidence presented in this case because no rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. The court concluded that the evidence was insufficient for two reasons: 1) the evidence at trial presented an alternative hypothesis to explain Hellen Hanks’ death, and that hypothesis raised a reasonable doubt as to Wilcox, Jr.’s guilt; and 2) the only testimony linking Wilcox, Jr., with Hellen Hanks’ death, the testimony of Ed Wrentz, could not be accepted as true by a rational trier of fact. The court further concluded that, since the writ was issued on grounds of insufficiency of evidence, the state would be barred from retrying Wilcox. The district court held in the alternative that the police misconduct in the case in interrogating Wrentz and Marshall “shocked the conscience”, thereby violating due process. As a result, the court held, Wilcox would be entitled to a new trial even if there had been sufficient evidence to convict Wilcox under Jackson v. Virginia. Sufficiency of the Evidence Warden Ford’s first contention on appeal is that the district court erred in concluding that the evidence adduced at trial was insufficient to support Wilcox’s conviction. In the seminal case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court stated that our task in addressing such a claim on habeas review is to determine whether any rational trier of fact would have found proof of guilt beyond a reasonable doubt. 443 U.S. at 319, 99 S.Ct. at 2789; see Stoner v. Graddick, 751 F.2d 1535, 1547 (11th Cir.1985); Duncan v. Stynchcombe, 704 F.2d 1213, 1215 (11th Cir.1983). In applying this test, we must review the evidence in the light most favorable to the prosecution. Jackson, supra, 443 U.S. at 319, 99 S.Ct. at 2789; Stoner, supra, 751 F.2d at 1547; Cosby v. Jones, 682 F.2d 1373, 1379 (11th Cir.1982). The federal courts have consistently reiterated that this standard for weighing the constitutional sufficiency of the evidence is a limited one. See, e.g., Martin v. State of Alabama, 730 F.2d 721, 724 (11th Cir.1984). It is not required that the evidence rule out every hypothesis except that of guilt beyond a reasonable doubt. Jackson, supra, 443 U.S. at 326, 99 S.Ct. at 2792; Martin, supra, 730 F.2d at 724. Faced with a record of historical facts that supports conflicting inferences, we must presume that the jury resolved such conflicts in favor of the prosecution, deferring to the jury’s judgment as to the weight and credibility of the evidence. See Jackson, supra, 443 U.S. at 326, 99 S.Ct. at 2792; Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.1985); Cobb v. Wainwright, 666 F.2d 966, 971 (5th Cir.), cert. denied, 457 U.S. 1107, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). The simple fact that the evidence gives some support to the defendant’s theory of innocence does not warrant the grant of habeas relief. Martin, supra, 730 F.2d at 724; Cosby, supra, 682 F.2d at 1383 and n. 21. In determining whether the facts of a particular case satisfy the Jackson standard, it is necessary to refer to the essential elements of the crimes as defined by state law. See Jackson, supra, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; Buffo v. Graddick, 742 F.2d 592, 595 (11th Cir.1984). The crimes charged in this case are murder and unlawful concealment of a death. Under Georgia law, “[a] person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.” O.C.G.A. § 16-5-1(a) (1981); see Holloway v. McElroy, 474 F.Supp. 1363, 1367-68 (M.D.Ga.1979), aff'd, 632 F.2d 605 (5th Cir.1980), cert. denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981). Express malice is defined as the “deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof.” Id. at § 16-5-1(b). Implied malice exists “where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Id. A person commits the misdemeanor of concealing death if “by concealing the death of any other person, [he] hinders a discovery of whether or not such person was unlawfully killed.” O.C.G.A. § 16-10-31. Appellee E.K. Wilcox, Jr., argues that the evidence at trial was insufficient to support his conviction on two grounds: 1) the evidence does not satisfy the Jackson v. Virginia standard because it gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence; and 2) even if the evidence as a whole meets the Jackson standard, the court should disregard the testimony of Ed Wrentz as incredible, and without the testimony of Wrentz there is clearly insufficient evidence to convict Wilcox of either crime. We reject both arguments and hold that the evidence presented by the State was clearly sufficient to support Wilcox's conviction for both murder and unlawful concealment of death. Considering all of the evidence in a light most favorable to the prosecution, including the testimony of Ed Wrentz, we find that it provided a sufficient basis for the jury to conclude that E.K. Wilcox, Jr., murdered Hellen Hanks and then concealed her death by surreptitiously burying her body in a field. The prosecution’s expert medical testimony identified the body as Hellen Hanks and gave the jury a reasonable basis to conclude that Hanks had been strangled in connection with a sexual assault. Several witnesses testified that E.K. Wilcox, Jr., had been sexually harassing Hanks in the weeks prior to her murder and that she was afraid of him. Other witnesses gave testimony indicating that Wilcox, Jr., arrived at the Wilcox offices in Valdosta on the day of the murder at around 3:00 or 3:30 rather than at 4:15 or 4:30 as claimed by Wilcox, giving rise to the inference that Wilcox, Jr. and the victim were together at the Wilcox offices for some period of time in the afternoon. The evidence also showed that Wilcox did not report Hanks as missing until 4:45 or 5:00 that afternoon. Furthermore, Wrentz’s direct testimony gave the jury a basis to conclude that later that same evening, Wilcox, Jr., Wilcox, Sr., Wrentz and Marshall put Hanks’ body in a wooden box belonging to Wilcox Advertising Company, dismembering her legs at the knees in order to fit her body into the box. The prosecution’s expert medical witnesses supported Wrentz’s testimony that Hanks’ legs had been dismembered below the knee. Wrentz testified that the four men drove out into the country and buried the box, together with Hanks’ clothes and various of her belongings, in the field where her body was discovered eight years later. Other evidence and testimony as to the physical condition of the burial site, the location of various items in and around the burial box, and the description of the site itself all corroborated Wrentz’s description of the burial and the burial site. Finally, various witnesses identified the burial box and various items found in or around the box as belonging to Wilcox Advertising Company. From this evidence, taken together with the rest of the evidence introduced at trial in support of the prosecution’s case, we find that a reasonable jury could have concluded beyond a reasonable doubt that Wilcox, Jr., caused the death of Hellen Hanks with malice aforethought and that he hindered the discovery of the fact that she was unlawfully killed. The jury could have disbelieved the testimony of the two Wilcoxes and credited Wrentz’s account of the events of the evening of the murder, as well as crediting the testimony of Wilcox, Jr.’s ex-wife and other witnesses indicating that Wilcox, Jr.’s location and activities were unaccounted for during two prolonged periods of time the afternoon and evening of Hanks’ disappearance. While Wilcox introduced exculpating evidence on various points, we must presume that the jury resolved the conflicts in the evidence in favor of the prosecution. Jackson, supra, 443 U.S. at 326, 99 S.Ct. at 2792. Given our conclusion that the prosecution’s evidence provides a sufficient basis for the conviction, conflicting evidence alone does not undermine that conclusion of sufficiency so long as a rational factfinder could have credited one side of the conflicting testimony over the other. See Stoner v. Graddick, supra, 751 F.2d at 1547. We do not find that the evidence supporting Wilcox’s defense is so strong that a rational factfinder would have necessarily credited his evidence over the prosecution’s evidence or have entertained a reasonable doubt as to Wilcox’s guilt. Rather, while the jury theoretically might have refused to convict Wilcox had they believed his story, the prosecution’s evidence was enough to support a guilty verdict on both charges if the jury chose to credit that evidence over the defendant’s evidence. Nor do we find that we could o" should disregard the testimony of Ed Wrentz in reviewing the sufficiency of the evidence under the Jackson standard. Wilcox argues that the sole evidence linking him to the crime, Wrentz’s testimony, is so incredible that it cannot provide a rational basis for the verdict. He argues that Wrentz’s testimony was internally inconsistent, confused and contradicted by all of the other individuals allegedly involved in the body burying operation, Lorenzo Marshall, Wilcox, Jr., and Wilcox, Sr. As discussed above, it is a firmly established principle of constitutional law that a defendant may not be convicted of a crime if the evidence presented at trial is insufficient to persuade a rational factfinder beyond a reasonable doubt that the defendant is guilty. Jackson v. Virginia, supra, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis added); United States v. Chauncey, 715 F.2d 543, 546 (11th Cir.1983). Based upon Jackson’s “rationality” requirement, this Circuit has held that a reviewing court may disregard testimony when it is “so inherently incredible, so contrary to the teachings of human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt.” Chauncey, supra, 715 F.2d at 546; See United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1275, 89 L.Ed.2d 582 (1986); United States v. Garner, 581 F.2d 481, 485-86 (5th Cir.1978); United States v. Cravero, 530 F.2d 666, 670 (5th Cir.1976). The issue before us now is whether Ed Wrentz’s testimony is so “inherently incredible... that no reasonable person would believe it beyond a reasonable doubt.” While Wrentz’s testimony was to some extent confused and self-contradicting, we find that the testimony he gave on direct examination is not at odds with ordinary common sense or physically impossible under the laws of nature. The account of events given by Wrentz very well could have occurred. More than that, many aspects of his testimony are corroborated by other evidence, such as the indications of dismemberment, the fact that it rained the night of August 31, and the description of the burial site. Furthermore, Wrentz’s testimony as to the time of day the burial took place is consistent with the two periods of time during the day for which Wilcox, Jr., and Sr. were unaccounted except by their own testimony. The credibility of Wrentz’s testimony, with all of its contradictions and confusion, was properly a question for the jury. See Rodriguez v. Wainwright, 740 F.2d 884, 886 (11th Cir.1984), cert. denied, 469 U.S. 1113, 105 S.Ct. 797, 83 L.Ed.2d 790 (1985). The jury made a collective decision to believe his testimony after observing him on the stand and hearing the defense’s thorough cross-examination of his direct testimony. We leave that credibility determination with the jury, where it properly belongs, and conclude that Ed Wrentz’s testimony was not incredible as a matter of law. Consequently, we adhere to our conclusion that the district court erred in evaluating the sufficiency of the evidence against Wilcox. Police Misconduct Warden Ford’s second argument on appeal is that the district court erred in its alternative holding that Wilcox was entitled to a new trial based on the fact that the police misconduct in this case violated his due process rights. The district court held that the “intimidation tactics” employed by the police in interrogating three employees of the Wilcox business, including Ed Wrentz, violated Wilcox’s Fifth Amendment right to due process. Upon carefully reviewing the record, however, we find that the district court erred in concluding that the police misconduct in this case was so egregious as to constitute a violation of Wilcox’s due process rights. The district court held that outrageous government conduct occurred based on the police interrogation of three Wilcox Advertising Company employees: Wrentz, Marshall, and an employee that did not testify at trial, John Goodman. The district court concluded that the manner in which the investigating police officers interrogated these three men “shock[ed] [his] conscience.” During the course of their interrogation the police officers told Goodman, a thirty-five year old black man, that they planned to hold him indefinitely and that they would “fry his ass”. They also insinuated that they had found his fingerprints on the burial box. Goodman consistently denied knowing anything about Hellen’s disappearance. Both Marshall and Wrentz, however, initially stated that they did not know anything but eventually signed statements attesting to the hole digging story related above. Wrentz was a very old, illiterate black man with what one police officer described as the “old slave syndrome.” The police officer testified that he discovered that Wrentz would agree to anything a white man asked him in a leading question format. The transcripts reflect that the interrogating officers threatened to charge Wrentz with murder, threatened to lynch him, put words in his mouth, and told him he was headed for eternal damnation. Marshall received similar treatment. He was in his late sixties at the time of the interrogation and illiterate. Marshall was interrogated for eight and a half hours without being provided with food or water. The officers then threatened to send him to the electric chair along with two other Wilcox employees and also told him that he would die in prison. He repeatedly told the officers that he was in Albany, Georgia, the week that Hanks disappeared and denied digging a hole. Marshall corroborated Wrentz’s story only after the police brought Wrentz into the room and Wrentz repeated his story in front of Marshall. Marshall later recanted the statement and explained that he had only made it because he was afraid and wanted to go home. Wilcox’s due process claim derives from the United States Supreme Court case United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), and its progeny. Based upon the general principle that criminal prosecutions must meet the bare minimum requirements of due process under the Fifth Amendment of the Constitution, the Supreme Court in Russell recognized that a conviction could be overturned where government involvement in the investigation and prosecution of the crime is so outrageous that it violates “fundamental fairness, shocking to the universal sense of justice.” Russell, supra, 411 U.S. at 431-32, 93 S.Ct. at 1642-43; see also Owen v. Wainwright, 806 F.2d 1519, 1521 (11th Cir.1986) (per curiam); United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). The question of whether government involvement in a criminal scheme rises to the level of a due process violation “turn[s] on the totality of the circumstances, with no single factor controlling.” Haimowitz, 725 F.2d at 1577; United States v. Tobias, 662 F.2d 381, 387 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982). The defense is only available in the “rarest and most outrageous circumstances.” Tobias, supra, 662 F.2d at 387. Wilcox argues that the police interrogation of Wrentz, Marshall and Goodman “shocks the universal sense of justice” and therefore violates his due process rights under the principles articulated in Russell. After reviewing the reported cases applying Russell, however, we find that this case is clearly distinguishable from Russell and its progeny on the facts. The term “government misconduct” is actually an overbroad misnomer: the “government misconduct” at issue in the Russell line of cases has been confined to alleged government over-involvement in the planning and/or execution of a crime in a sting or reverse sting operation, rather than to a more general concept of government misconduct. See, e.g., Russell, supra, 411 U.S. at 423, 93 S.Ct. at 1637; Owen, supra, at 1521; Haimowitz, supra, 725 F.2d at 1577; Tobias, supra, 662 F.2d at 386; United States v. Sayers, 698 F.2d 1128, 1130 (11th Cir.1983); United States v. Gianni, 678 F.2d 956, 959-60 (11th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). The allegation of misconduct in this case, improper interrogation of witnesses, is not a claim that the police were over-involved in the planning or execution of the crime. This Circuit has not yet passed upon whether Russell may be read more broadly to apply outside of the narrow context of government over-involvement in a sting operation. While we do not hold that Russell can never apply to a situation other than one alleging police over involvement in a sting operation, we do hold that it does not apply to the facts of this case. The police misconduct here, while not commendable, is not so extreme that it violates a sense of “fundamental fairness, shocking to the universal justice” as far as Wilcox’s constitutional rights are concerned. Nor do we find that this case presents “the rarest and most egregious circumstances” which might justify finding that Wilcox’s due process rights were violated under Russell. Our review of the tapes and transcripts does not indicate any evidence of physical abuse or threats or improper inducements or promises in exchange for a statement implicating the defendant. We reverse the district court’s finding that the police misconduct in this case violated Wilcox’s due process rights. Admission of Coerced Testimony Wilcox on cross-appeal argues that the admission of the “unreliable” and “inflammatory” direct testimony of Wrentz and prior statement of Marshall for impeachment purposes rendered his trial fundamentally unfair. The district court dismissed this claim as meritless. We agree with the district court. It is well settled that the admission of evidence which renders a trial fundamentally unfair warrants a new trial. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Even more to the point, the courts have held that the admission at trial of improperly obtained statements which results in a fundamentally unfair trial violates a defendant’s Fifth Amendment right to a fair trial. See United States v. Merkt, 764 F.2d 266, 274 (5th Cir.1985); United States v. Chiavola, 744 F.2d 1271, 1273-74 (7th Cir.1984); United States ex rel Cunningham v. DeRobertis, 719 F.2d 892, 895-96 (7th Cir.1983); United States v. Fredericks, 586 F.2d 470, 480 (5th Cir.1978), cert. denied, 440 U.S. 962, 99 S.Ct. 1507, 59 L.Ed.2d 776 (1979); LaFrance v. Bohlinger, 499 F.2d 29, 34-35 (1st Cir.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974). Viewing the circumstances of the trial as a whole, it is apparent that the admission of Wrentz’s direct testimony and Marshall’s prior statement was not improper and did not result in a fundamentally unfair trial. The Georgia Supreme Court found that the evidence was properly admissible as a matter of state evidentiary law, and while that is not dispositive of the federal constitutional question, the opportunity for cross-examination, admission of contradictory evidence, and the jury charges rendered by the trial court gave the jury adequate opportunity to assess the proper weight to be accorded to the challenged evidence. See United States ex rel. Portelli v. LaVallee, 469 F.2d 1239, 1240 (2d Cir.1972), cert. denied, 411 U.S. 950, 93 S.Ct. 1939, 36 L.Ed.2d 412 (1973). Even assuming that the police employed improper interrogation techniques to obtain Marshall’s and Wrentz’s out-of-court statements implicating Wilcox in the crime, only Marshall’s out-of-court statement was actually introduced at trial. As the court’s charge to the jury clearly informed them, Marshall’s out-of-court statement was only introduced on cross-examination for the limited purpose of impeachment. The defendant had a full opportunity to repair any damage the impeaching statement might have caused to the credibility of Marshall’s direct testimony by calling the two witnesses who testified that they had been with Marshall in Albany on the date in question. As far as Wrentz’s direct testimony is concerned, Wilcox has offered no real reason why the testimony was improperly admitted, beyond the claim that it is unreliable and inflammatory. While his testimony was to some degree confused and contradictory, it was highly relevant. There is no proof that Wrentz was incompetent to testify or that his in-court testimony was coerced. Cf. Bradford v. Johnson, 354 F.Supp. 1331, 1336-37 (E.D.Mich.1972), aff'd per curiam, 476 F.2d 66 (6th Cir.1973) (admission of in-court testimony violated defendant’s Fifth Amendment rights where witness was tortured by government and testified under threat of future torture). Furthermore, given that Wrentz’s direct testimony was corroborated in various aspects by other evidence, it does not even appear that Wrentz’s direct testimony is necessarily unreliable. Even assuming, however, that the reliability of Wrentz’s direct testimony and Marshall’s out-of-court statements was somewhat suspect, the defendant had adequate tools in hand to challenge their reliability before the jury. The defense had full knowledge of the nature of Wrentz’s and Marshall’s interrogation, had access to the tapes and transcripts of the interrogation sessions prior to trial, and had a full opportunity to use those materials in examining both witnesses. Furthermore, in addition to a full opportunity to cross-examine both witnesses, Wilcox had adequate opportunity to put on independent evidence to discredit the challenged testimony and did in fact put on such evidence. Finally, the trial court gave the appropriate jury charges on reasonable doubt, credibility, and immunity to aid them in assessing the value of the evidence in question. Considering all of these factors, we conclude that Wilcox did receive a fundamentally fair trial in spite of any government misconduct that might have occurred. Trial Court’s Failure to Strike Two Jurors For Cause Wilcox also asserts on cross-appeal that the trial court erred in refusing to strike two jurors for cause after they indicated in voir dire that they had preconceived notions about the defendant’s guilt. Both jurors, Finland and Nutt, were essentially in the same position: one admitted that she had an “inclination” as to the defendant’s guilt and the other stated that she had “formed an opinion” as to the defendant’s guilt. Upon further questioning by the trial judge, however, both jurors stated that they would be able to decide the case solely on the basis of the evidence presented in court and the law as given by the judge. Both also stated that they would be able to disregard their previous inclinations and knew of no reason why they could not be fair and impartial jurors. The trial court then refused to strike either juror for cause. We hold that the district court did not err in dismissing Wilcox’s challenge to the trial court’s refusal as meritless. In Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984), the Supreme Court held that the question of whether a particular juror has opinions which disqualify him is a question of historical fact to be resolved by the state courts. The trial court’s resolution of this question of fact is entitled to special deference. Id. at 1038, 104 S.Ct. at 2892. The question of fact should be resolved, the Court said, by asking whether the juror swore he could set aside any opinion he might hold and decide the case solely on the evidence, and whether the juror’s protestation of impartiality was believable. Id. at 1036, 104 S.Ct. at 2891. The question for this court is “whether there is fair support in the record for the state court’s conclusion that the jurors here would be impartial.” Id. at 1038, 104 S.Ct. at 2892. In this case, the Georgia Supreme Court considered appellee’s claim and concluded that it was meritless. The court stated that, in light of the jurors’ repeated statements that they felt able to decide the case solely on the evidence presented in court, “we cannot conclude from the record that [their] opinion[s]... [were] so fixed that [they] would not follow the instructions of the trial court.” Wilcox v. State, supra, 301 S.E.2d at 261. After a review of the record, we find that the voir dire of both jurors provides “fair support” for the state court’s conclusion that the jurors were impartial, and therefore defer to that conclusion. Limitation of Questioning During Voir Dire Wilcox’s final argument on cross-appeal is his claim that the trial court denied his Sixth and Fourteenth Amendment rights by refusing to allow him to ask two potential jury members whether their preconceived leanings were towards innocence or guilt. Both jurors, Swank and Parrish, admitted during voir dire that they had a leaning in one direction or another. Immediately after making those statements, however, they both said that they would be able to disregard the leaning and decide the case solely on the evidence. The trial judge then refused to let the defendant ask them which way they were leaning. Appellee now claims that the trial judge’s refusal to let him ask that question violated his constitutional rights. The district court also dismissed this claim as meritless. We agree with the district court. Under both federal and state law, a trial judge is accorded wide discretion in ascertaining what questions can and cannot be asked on voir dire. See Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981); Walters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 36, 77 L.Ed.2d 1455 (1983). The purpose of a voir dire is to ascertain whether a potential juror can render a verdict solely on the basis of the evidence presented Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_casesource	029	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. RAKE et al. v. WADE, TRUSTEE No. 92-621. Argued March 22, 1993 Decided June 7, 1993 David A. Carpenter argued the cause for petitioners. With him on the briefs was J. Edwin Poston. Lawrence A. G. Johnson argued the cause and filed a brief for respondent. Ronald J. Mann argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Deputy Solicitor General Wallace, and Alfred J. T. Byrne. Justice Thomas delivered the opinion of the Court. This case requires us to decide whether Chapter 13 debtors who cure a default on an oversecured home mortgage pursuant to § 1322(b)(5) of the Bankruptcy Code, 11 U. S. C. § 1322(b)(5), must pay postpetition interest on the arrearages. We conclude that the holder of the mortgage is entitled to such interest under §§ 506(b) and 1325(a)(5) of the Code. I Petitioners Donald and Linda Rake, petitioners Earnest and Mary Yell, and respondents Ronnie and Rosetta Han-non initiated three separate Chapter 13 bankruptcy proceedings in the Northern District of Oklahoma. In each ease the debtors were in arrears on a long-term promissory note assigned to respondent William J. Wade, trustee (hereinafter respondent). The notes allowed a $5 charge for each missed payment but did not provide for interest on arrearages. Payment on the notes was secured by a first mortgage on the principal residence owned by each pair of debtors. The mortgage instruments provided that in the event of a default by the debtors, the holder of the note (now respondent as assignee) had the right to declare the remainder of indebtedness due and payable and to foreclose on the property. Because the value of the residence owned by each pair of debtors exceeded the outstanding balance on the corresponding notes, respondent was an oversecured creditor. In their Chapter 13 plans the debtors proposed to pay directly to respondent all future payments of principal and interest due on the notes. The plans also provided that the debtors would cure the default on the mortgages by paying off the arrearages, without interest, over the terms of the plans. Respondent objected to each plan, on the ground that he was entitled to attorney’s fees and interest on the arrearages. The Bankruptcy Court overruled respondent’s objections, and respondent appealed to the District Court for the Northern District of Oklahoma, which consolidated the cases and affirmed. The District Court held that the Chapter 13 provisions relating to the “curing of defaults” — 11 U. S. C. §§ 1322(b)(2) and 1322(b)(5) — “do not alter the contract between the parties governing such matters as interest, if any, to be paid on arrearage,” and that allowing interest on arrearages would be “improper,” since the notes did not provide for it. App. to Pet. for Cert. A-24. The United States Court of Appeals for the Tenth Circuit reversed. Wade v. Hannon, 968 P. 2d 1036 (1992). The court held that § 506(b) of the Bankruptcy Code, as interpreted in United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989), entitles an oversecured creditor to postpetition interest on arrearages and other charges paid off under a Chapter 13 plan, “even if the mortgage instruments are silent on the subject and state law would not require interest to be paid.” 968 F. 2d, at 1042. The Tenth Circuit relied in part on the Sixth Circuit’s decision in In re Colgrove, 771 F. 2d 119 (1985), which reached the same result but rested its decision on § 1325(a)(5) as well as § 506(b) of the Bankruptcy Code. Four other Courts of Appeals have held that under the “cure” and “modification” provisions of § 1322(b) a mortgagee is not entitled to interest on home mortgage arrearages. We granted certiorari to resolve the conflict. 506 U. S. 972 (1992). II Petitioners’ Chapter 13 plans proposed to “cure” the defaults on respondent’s oversecured home mortgages by establishing repayment schedules for the arrearages. Three interrelated provisions of the Bankruptcy Code determine whether respondent is entitled to interest on those arrearages: §§ 506(b), 1322(b), and 1325(a)(5). Section 506(b), which applies to Chapter 13 proceedings pursuant to 11 U. S. C. § 103(a), provides that holders of oversecured claims are “allowed” postpetition interest on their claims. In Ron Pair we held that the right to postpetition interest under § 506(b) is “unqualified” and exists regardless of whether the agreement giving rise to the claim provides for interest. 489 U. S., at 241. It is generally recognized that the interest allowed by § 506(b) will accrue until payment of the secured claim or until the effective date of the plan. See 3 Collier on Bankruptcy ¶ 506.05, p. 506-43, and n. 5c (15th ed. 1993) (hereinafter Collier). Respondent concedes, and his amicus the United States agrees, that because § 506(b) “has the effect of allowing a claim to the creditor, ... the rights granted under Section 506(b) are relevant only until confirmation of the plan.” Brief for United States as Amicus Curiae 11, n. 7. Accord, Tr. of Oral Arg. 24, 34. Petitioners also agree that § 506(b) applies only from the date of filing through the confirmation date. Brief for Petitioners 10,13. Two paragraphs of § 1322(b) are relevant here: §§ 1322(b) (2) and 1322(b)(5). Section 1322(b)(2) authorizes debtors to modify the rights of secured claim holders, but it provides protection for home mortgage lenders by creating a specific “no modification” exception for holders of claims secured only by a lien on the debtor’s principal residence. Section 1322(b)(5) expressly authorizes debtors to cure any defaults on a long-term debt, such as a mortgage, and to maintain payments on the debt during the life of the plan. Under § 1322(b)(5), a plan may provide for the curing of any defaults and the maintenance of payments on a long-term debt “notwithstanding” § 1322(b)(2)’s prohibition against modifications of the rights of home mortgage lenders. The final provision bearing on this case — § 1325(a)(5)— states that “with respect to each allowed secured claim provided for by the plan,” one of three requirements must be satisfied before the plan may be confirmed: (1) the holder of the claim has accepted the plan, § 1325(b)(5)(A); (2) the debtor surrenders the property securing such claim to the secured creditor, § 1325(a)(5)(C); or (3) the holder of the secured claim retains the lien securing such claim, § 1325(a) (5) (B)(i), and “the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim,” § 1325(a)(5)(B)(ii). Thus, unless the creditor accepts the plan or the debtor surrenders the collateral to the creditor, § 1325(a)(5)(B)(ii) guarantees that property distributed under a plan on account of a claim, including deferred cash payments in satisfaction of the claim, see 5 Collier ¶ 1325.06[4][b][ii], must equal the present dollar value of such claim as of the confirmation date. Petitioners, respondent, and the United States agree that “[s]ection 1325(a)(5)(B) requires all holders of allowed secured claims to be paid the present value of such claims, whieh implies the payment of interest.” Reply Brief for Petitioners 5. Accord, Brief for Respondent 16-17; Brief for United States as Amicus Curiae 11-12, and n. 8. Ill Although petitioners and respondent generally agree as to the requirements of §§ 506(b) and 1325(a)(5), petitioners argue that those provisions do not apply when the debtor cures a default on a home mortgage under § 1322(b)(5). Some courts have construed the “cure” and “modification” provisions of § 1322(b) so broadly as to render §§ 506(b) and 1325(a)(5) inapplicable to the curing of defaults on home mortgages. E. g., Landmark Financial Services v. Hall, 918 P. 2d 1150, 1153-1155 (CA4 1990). Petitioners contend that this is precisely what § 1322(b) requires. A Turning first to § 506(b), petitioners concede that respondent holds an oversecured claim, which includes arrearages and that “ ‘an oversecured creditor is ordinarily entitled to an allowance for postpetition interest on its secured claim under Chapter 13.’” Reply Brief for Petitioners 2 (quoting In re Laguna, 944 F. 2d 542, 544 (CA9 1991) (footnote omitted), cert. denied, 503 U. S. 966 (1992)). They argue, however, that § 1322(b)(5) “operate[s] to the exclusion of the provisions of § 506(b),” Brief for Petitioners 9, and that § 506(b) thus “does not require the payment of . . . preeonfirmation interest on home mortgage arrearages in Chapter 13 bankruptcy proceedings,” Reply Brief for Petitioners 1. Because § 1322(b)(5) does not expressly negate § 506(b), petitioners suggest that “‘[d]espite some broad language in Ron Pair, . . . § 506(b) is inapplicable in the context of [Chapter 13] mortgage cures.’” Brief for Petitioners 13 (quoting Hall, supra, at 1154). Petitioners’ interpretation of §§ 506(b) and 1322(b)(5) does not comport with the terms of those provisions. Under § 506(b) the holder of an overseeured claim is allowed interest on his claim to the extent of the value of the collateral. Section 506(b) “directs that postpetition interest be paid on all overseeured claims,” Ron Pair, 489 U. S., at 245 (emphasis added), and, as the parties acknowledge, such interest accrues as part of the allowed claim from the petition date until the confirmation or effective date of the plan. See supra, at 468. The arrearages owed on the mortgages held by respondent are plainly part of respondent’s overseeured claims. Under the unqualified terms of § 506(b), therefore, respondent is entitled to preconfirmation interest on these arrearages. Where the statutory language is clear, our “‘sole function ... is to enforce it according to its terms.’” Ron Pair, supra, at 241 (quoting Caminetti v. United States, 242 U. S. 470, 485 (1917)). Accord, Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). Section 1322(b)(5), on the other hand, states that a Chapter 13 plan may “provide for the curing of any default and the maintenance of payments” on certain claims. While § 1322(b)(5) authorizes a Chapter 13 plan to provide for payments on arrearages to effectuate a cure after the effective date of the plan, nothing in that provision dictates the terms of the cure. In particular, § 1322(b)(5) provides no indication that the allowed amount of the arrearages cured under the plan may not include interest otherwise available as part of the overseeured claim under § 506(b). We generally avoid construing one provision in a statute so as to suspend or supersede another provision. To avoid “denying] effect to a part of a statute,” we accord “ ‘significance and effect... to every word.’” Ex parte Public Nat. Bank of New York, 278 U. S. 101, 104 (1928) (quoting Market Co. v. Hoffman, 101 U.S. 112, 115 (1879)). Construing §§ 506(b) and 1322(b)(5) together, and giving effect to both, we conclude that § 1322(b)(5) authorizes a debtor to cure a default on a home mortgage by making payments on arrearages under a Chapter 13 plan, and that where the mortgagee’s claim is over-secured, § 506(b) entitles the mortgagee to preconfirmation interest on such arrearages. B Petitioners make virtually the same argument with respect to postconfirmation interest under § 1325(a)(5). Petitioners concede that under § 1325(a)(5)(B)(ii) secured creditors are entitled to the “present value of [their] claims, which implies the payment of interest.” Reply Brief for Petitioners 5. Petitioners contend, however, that § 1325(a)(5)(B)(ii) “applies only to secured claims which have been modified in the Chapter 13 plan, and which, by reason of Section 1322(b)(2), may not include home mortgages.” Ibid. Since nothing in the Code states that § 1325(a)(5) applies only to “modified” claims, petitioners turn to those Court of Appeals decisions that have held that “the legislative history indicates that § 1322(b) was intended to create a special exception to § 1325(a)(5)(B).” In re Terry, 780 F. 2d 894, 896-897 (CA11 1985). Accord, In re Laguna, supra, at 544-545; Hall, 918 F. 2d, at 1154-1155; Appeal of Capps, 836 F. 2d 773, 776 (CA3 1987). Petitioners’ interpretation of §§ 1322(b) and 1325(a)(5) is refated by the plain language of the Code. Section 1325(a)(5) applies by its terms to “each allowed secured claim provided for by the plan.” The most natural reading of the phrase to “provid[e] for by the plan” is to “make a provision for” or “stipulate to” something in a plan. See, e. g., American Heritage Dictionary 1053 (10th ed. 1981) (“provide for” defined as “to make a stipulation or condition”). Petitioners’ plans clearly “provided for” respondent’s home mortgage claims by establishing repayment schedules for the satisfaction of the arrearages portion of those claims. As authorized by § 1322(b)(5), the plans essentially split each of respondent’s secured claims into two separate claims — the underlying debt and the arrearages. While payments of principal and interest on the underlying debts were simply “maintained” according to the terms of the mortgage documents during the pendency of petitioners’ cases, each plan treated the arrearages as a distinct claim to be paid off within the life of the plan pursuant to repayment schedules established by the plans. Thus, the arrearages, which are a part of respondent’s home mortgage claims, were “provided for” by the plans, and respondent is entitled to interest on them under § 1325(a)(5)(B)(ii). Other provisions of Chapter 13 containing the phrase “provided for by the plan” make clear that petitioners’ plans provided for respondent’s home mortgage claim. See United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) (statutory terms are often “clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes [their] meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”) (citation omitted). Title 11 U. S. C. § 1328(a) (1988 ed., Supp. Ill), for example, utilizes the phrase “provided for by the plan” in dealing with the discharge of debts under Chapter 13. As used in § 1328(a), that phrase is commonly understood to mean that a plan “makes a provision” for, “deals with,” or even “refers to” a claim. See 5 Collier ¶ 1328.01, at 1328-9. In addition, § 1328(a) unmistakably contemplates that a plan “provides for” a claim when the plan cures a default and allows for the maintenance of regular payments on that claim, as authorized by § 1322(b)(5). Section 1328(a) states that “all debts provided for by the plan” are dischargeable, and then lists three exceptions. One type of claim that is “provided for by the plan” yet excepted from discharge under § 1328(a) is a claim “provided for under section 1322(b)(5) of this title.” § 1328(a)(1). If claims that are subject to § 1322(b)(5) were not “provided for by the plan,” there would be no reason to make an exception for them in § 1328(a)(1). Under § 1325(a)(5), therefore, respondent is entitled to the present value of arrearages paid off under the terms of the plans as an element of an “allowed secured claim provided for by the plan.” IV We hold that respondent is entitled to preconfirmation and postconfirmation interest on arrearages paid off under petitioners’ plans. We therefore affirm the judgment of the Court of Appeals. So ordered. Because the Hannons did not join the petition for certiorari, they are respondents in this Court under this Court’s Rule 12.4. In re Laguna, 944 F. 2d 542, 545 (CA9 1991), cert. denied, 503 U. S. 966 (1992); Landmark Financial Services v. Hall, 918 F. 2d 1150, 1153-1155 (CA4 1990); Appeal of Capps, 836 F. 2d 773, 776 (GA3 1987); In re Terry, 780 F. 2d 894, 895-896 (CA11 1985). By “home mortgage” we mean an allowed claim secured only by a security interest in the debtor's principal residence. See 11 U. S. C. § 1322(b)(2). Section 506(b) states: “To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.” Under this provision, an oversecured creditor is entitled to postpetition interest on its claim only “to the extent that such interest, when added to the principal amount of the claim,” does not “exceed the value of the collateral.” United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 372 (1988). Section 1322(b)(2) provides that a Chapter 13 plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims.” Section 1322(b)(5) states that “notwithstanding” § 1322(b)(2), a plan may “provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due.” Respondent is the holder of an allowed oversecured claim in each pair of petitioners’ cases, and this claim includes “arrearages on the note and mortgage.” App. 6, 22. When a claim is paid off pursuant to a stream of future payments, a creditor receives the “present value” of its claim only if the total amount of the deferred payments includes the amount of the underlying claim plus an appropriate amount of interest to compensate the creditor for the decreased value of the claim caused by the delayed payments. This generally involves a determination of an appropriate discount rate and a discounting of the stream of deferred payments back to the present dollar value of the claim at confirmation. See 5 Collier V 1325.06[4][b][iii][B]. Because the issue is not presented in this case, we express no view on the appropriate rate of interest that debtors must pay on arrearages cured pursuant to § 1322(b)(5). Petitioners’ argument that "modified” claims cannot include home mortgage claims that have been “cured” does not withstand scrutiny. When a plan cures a default and reinstates payments on a claim, the creditor’s contractual rights arising from the default — which in this case included the right to declare all payments due and payable, accelerate the debt, possess the property, collect rents generated by the property, and foreclose on the property, see App. 14-15, 29-30 — are abrogated and therefore “modified.” These modifications are allowed under § 1322 (b)(5) “notwithstanding” the fact that § 1322(b)(2) generally prohibits the modification of the rights of home mortgage holders. Petitioners’ construction of § 1322(b)(2) also leads to the incongruous result that only home mortgage claims would be denied the benefits of § 1325(a)(5). By prohibiting modifications of the rights of holders of home mortgage claims, Congress could not have intended, in our view, to afford the holders of these claims less protection than the holders of other secured claims. Section 1328(a) provides: “As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt— “(1) provided for under section 1322(b)(5) of this title; “(2) of the kind specified in paragraph (5) or (8) of section 523(a) or 523(a)(9) of this title; or “(3) for restitution included in a sentence on the debtor’s conviction of a crime.” Section 1328(a)(1) refers to “debts” rather than claims, but a debt under the Code is simply “liability on a claim.” 11 U. S. C. § 101(12) (1988 ed., Supp. III). Petitioners suggest that by allowing postpetition interest on arrearages “and other charges,” the Tenth Circuit misconstrued United States v. Ron Pair Enterprises, Inc., 489 U. S. 235 (1989). Brief for Petitioners 21. We disagree. Ron Pair held that under § 506(b) a creditor is entitled to postpetition interest on its “overseeured claim.” 489 U. S., at 241. The arrearages portion of respondent’s oversecured claims in this case included the amounts past due on the notes and the “other charges” to which the Tenth Circuit referred. App. 6,22. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. 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North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
sc_decisiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. TANIGUCHI v. KAN PACIFIC SAIPAN, LTD., dba MARIANAS RESORT AND SPA No. 10-1472. Argued February 21, 2012 Decided May 21, 2012 Auto, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, and Kagan, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined, post, p. 575. Michael S. Fried argued the cause for petitioner. With him on the briefs were Donald. B. Ayer, Christopher J. Smith, and Douglas F. Cushnie. Dan Himmelfarb argued the cause for respondent. With him on the brief were Michael B. Kimberly and Thomas L. Roberts. Mark T. Stancil, David T. Goldberg, Daniel R. Ortiz, James E. Ryan, and John P. Elwood filed a brief for the National Association of Judiciary Interpreters and Translators as amicus curiae urging reversal. Deanne E. Maynard, Brian R. Matsui, and Marc A. Hearron filed a brief for the Chicago Area Translators and Interpreters Association et al. as amici curiae urging affirmance. M. Scott Barnard, Scott T. Williams, and Patrick G. O’Brien filed a brief for Interpreting and Translation Professors as amici curiae. Justice Alito delivered the opinion of the Court. The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U. S. C. § 1920. The Court Interpreters Act amended that statute to include “compensation of interpreters.” §1920(6); see also § 7, 92 Stat. 2044. The question presented in this case is whether “compensation of interpreters” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation. I — < This case arises from a personal injury action brought by petitioner Kouichi Taniguchi, a professional baseball player in Japan, against respondent Kan Pacific Saipan, Ltd., the owner of a resort in the Northern Mariana Islands. Petitioner was injured when his leg broke through, a wooden deck during a tour of respondent’s resort property. Initially, petitioner said that he needed no medical attention, but two weeks later, he informed respondent that he had suffered cuts, bruises, and torn ligaments from the accident. Due to these alleged injuries, he claimed damages for medical expenses and for lost income from contracts he was unable to honor. After discovery concluded, both parties moved for summary judgment. The United States District Court for the Northern Mariana Islands granted respondent’s motion on the ground that petitioner offered no evidence that respondent knew of the defective deck or otherwise failed to exercise reasonable care. In preparing its defense, respondent paid to have various documents translated from Japanese to English. After the District Court granted summary judgment in respondent’s favor, respondent submitted a bill for those costs. Over petitioner’s objection, the District Court awarded the costs to respondent as “compensation of interpreters” under § 1920(6). Explaining that interpreter services “cannot be separated into ‘translation’ and ‘interpretation,’” App. to Pet. for Cert. 25a, the court held that costs for document translation “fal[l] within the meaning of ‘compensation of an interpreter,’” ibid. Finding that it was necessary for respondent to have the documents translated in order to depose petitioner, the court concluded that the translation services were properly taxed as costs. The United States Court of Appeals for the Ninth Circuit affirmed both the District Court’s grant of summary judgment and its award of costs. The court rejected petitioner’s argument that the cost of document translation services is not recoverable as “compensation of interpreters.” The court explained that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech versus written documents.” 633 F. 3d 1218, 1221 (2011). “More importantly,” the court stressed, this construction of the statute “is more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” Ibid. The court thus concluded that “the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language, so long as. interpretation of the items is necessary to the litigation.” Id., at 1221-1222. Because there is a split among the Courts of Appeals on this issue, we granted certiorari. 564 U. S. 1066 (2011). HH f — < A Although the taxation of costs was not allowed at common law, it was the practice of federal courts in the early years to award costs in the same manner as the courts of the relevant forum State. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247-248 (1975). In 1793, Congress enacted a statute that authorized the awarding of certain costs to prevailing parties based on state law: “That there be allowed and taxed in the supreme,.circuit and district courts of the United States, in favour of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attornies and counsellors’ fees ... as are allowed in the supreme or superior courts of the respective states.” Act of Mar. 1, 1793, ch. 20, §4, 1 Stat. 333. Although twice reenacted, this provision expired in 1799. Alyeska Pipeline, supra, at 248, n. 19; Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U. S. 437, 439 (1987). Yet even in the absence of express legislative authorization, the practice of referring to state rules for the taxation of costs persisted. See Alyeska Pipeline, 421 U. S., at 250. Not until 1853 did Congress enact legislation specifying the costs allowable in federal court. Id., at 251. The impetus for a uniform federal rule was largely the consequence of two developments. First, a “great diversity in practice among the courts” had emerged. Ibid. Second, “losing litigants were being unfairly saddled with exorbitant fees for the victor’s attorney.” Ibid. Against this backdrop, Congress passed the 1853 Fee Act, which we have described as a “far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts.” Id., at 251-252; The substance of this Act was transmitted through the Revised Statutes of 1874 and the Judicial Code of 1911 to the Revised Code of 1948, where it was codified, “without any apparent intent to change the controlling rules,” as 28 U. S. C. § 1920. 421 U. S., at 255. Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney’s fees — should be allowed to the prevailing party.” Rule 54(d)(1). We have held that “§ 1920 defines the term ‘costs’ as used in Rule 54(d).” Crawford Fitting, 482 U. S., at 441. In so doing, we rejected the view that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in § 1920.” Ibid. As originally configured, § 1920 contained five categories of taxable costs: (1) “[f]ees of the clerk and marshal”; (2) “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and witnesses”; (4) “[f]ees for exemplification and copies of papers necessarily obtained for use in the case”; and (5) “[djocket fees under section 1923 of this title.” 62 Stat. 955. In 1978, Congress enacted the Court Interpreters Act, which amended § 1920 to add a sixth category: “[ejompensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services- under section 1828 of this title.” 28 U. S. C. § 1920(6); see also § 7, 92 Stat. 2044. We are concerned here with this sixth category, specifically the item of taxable costs identified as “compensation of interpreters.” B To determine whether the item “compensation of interpreters” includes costs for document translation, we must look to the meaning of “interpreter.” That term is not defined in the Court Interpreters Act or in any other relevant statutory provision. When a term goes undefined in a statute, we give the term its ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995). The question here is: What is the ordinary meaning of “interpreter”? Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined “interpreter” as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as “[o]ne who translates orally from one language 'into another.” American Heritage Dictionary 685 (1978). The Scribner-Bantam English Dictionary defined the related word “interpret” as “to translate orally.” Scribner-Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of “interpret” as “to translate what is said in a foreign language.” Random House Dictionary of the English Language 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined “interpreter” as “[o]ne who translates languages,” but then divided that definition into two senses: “a. [a] translator of books or writings,” which it designated as obsolete, and “b. [o]ne who translates the communications of persons speaking different languages; spec, one whose office it is to do so orally in the presence of the persons; a dragoman.” 5 Oxford English Dictionary 416 (1933); see also Concise Oxford Dictionary of Current English 566 (6th ed. 1976) (“[o]ne who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence”); Chambers Twentieth Century Dictionary 686 (1973) (“one who translates orally for the benefit of two or more parties speaking different languages:... a translator (obs.)”). Pre-1978 legal dictionaries also generally defined the words “interpreter” and “interpret” in terms of oral, translation. The; then-current edition of Black’s Law Dictionary, for example, defined “interpreter” as “[a] person sworn at a trial to interpret the evidence of a foreigner... to the court,” and it defined “interpret” in relevant part as “to translate orally from one tongue to another.” Black’s Law Dictionary 954, 953 (rev. 4th ed. 1968); see also W. Anderson, A Dictionary of Law 565 (1888) (“[o]ne who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury”); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 639 (1878) (“one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language”). But see Ballentine’s Law Dictionary 655, 654 (3d ed. 1969) (defining “interpreter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language,” and “interpret” as “to translate from a foreign language”). Against these authorities, respondent relies almost exclusively on Webster’s Third New International Dictionary (hereinafter Webster’s Third). The version of that dictionary in print when Congress enacted the Court Interpreters Act defined “interpreter” as “one that translates; esp: a person who translates orally for parties conversing in different tongues.” Webster’s Third 1182 (1976). The sense divider esp (for especially) indicates that the most common meaning of the term is one “who translates orally,” but that meaning is subsumed within the more general definition “one that translates.” See 12,000 Words: A Supplement to Webster’s Third 15a (1986) (explaining that esp “is used to introduce the most common meaning included in the more general preceding definition”). For respondent, the general definition suffices to establish that the term “interpreter” ordinarily includes persons who translate the written word. Explaining that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ ” the Court of Appeals reached the same conclusion. 633 F. 3d, at 1221. We disagree. That a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. 296, 301 (1989) (relying on the “most common meaning” and the “ordinary and natural signification” of the word “request,” even though it may sometimes “double for ‘demand’ or ‘command’ ”). The fact that the definition of “interpreter” in Webster’s Third has a sense divider denoting the most common usage suggests that other usages, although acceptable, might not be common-or ordinary. It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. See supra, at 566-568. Although the Oxford English Dictionary, one of the most authoritative on the English language, recognized that “interpreter” can mean one who translates writings, it expressly designated that meaning as obsolete. See supra, at 566-567. Were the meaning of “interpreter” that respondent advocates truly common or ordinary, we would expect to see more support for that meaning. We certainly would not expect to see it designated as obsolete in the Oxford English Dictionary. Any definition of a word that is absent from many dictionaries and is deemed obsolete in others is hardly a common or ordinary meaning. Based on our survey of the relevant dictionaries, we conclude that the ordinary or common meaning of “interpreter” does not include those who translate writings. Instead, we find that an interpreter is normally understood as one who translates orally from one language to another. This sense of the word is far more natural. As the Seventh Circuit put it: “Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no one would refer to him as an English-language ‘interpreter’ of these works.” Extra Equipamentos E Exportaȩão Ltda. v. Case Corp., 541 F. 3d 719, 727 (2008). To be sure, the word “interpreter” can encompass persons who translate documents, but because that is not the ordinary meaning of the word, it does not control unless the context in which the word appears indicates that it does. Nothing in the Court Interpreters Act or in § 1920, however, even hints that Congress intended to go beyond the ordinary meaning of “interpreter” and to embrace the broadest possible meaning that the definition of the word can bear. If anything, the statutory context suggests the opposite: that the word “interpreter” applies only to those who translate orally. As previously mentioned, Congress enacted § 1920(6) as part of the Court Interpreters Act. The main provision of that Act is §2(a), codified in 28 U. S. C. §§ 1827 and 1828. See 92 Stat. 2040-2042. Particularly relevant here is § 1827. As it now reads, that statute provides for the establishment of “a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.” § 1827(a). Subsection (d) directs courts to use an interpreter in any criminal or civil action instituted by the United States if a party or witness “speaks only or primarily a language other than the English language” or “suffers from a hearing impairment” “so as to inhibit such party's comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness' comprehension of questions and the presentation of such testimony.” § 1827(d)(1). As originally enacted, subsection (k) mandated that the “interpretation provided by certified interpreters . . . shall be in the consecutive mode except that the presiding judicial officer . . . may authorize a simultaneous or summary interpretation.” § 1827(k) (1976 ed., Supp. II); see also 92 Stat. 2042. In its current form, subsection (k) provides that interpretation “shall be in the simultaneous mode for any party ., . and in the consecutive mode for witnesses,” unless the court directs otherwise. The simultaneous, consecutive, and summary modes are all methods of oral interpretation and have nothing to do with the translation of writings. Taken together, these provisions are a strong contextual clue that Congress was dealing only with oral translation in the Court Interpreters Act and that it intended to use the term “interpreter” throughout the Act in its ordinary sense as someone who translates the spoken word. As we have said before, it is a “ ‘normal rule of statutory construction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” Gustafson v. Alloyd Co., 513 U. S. 561, 570 (1995) (quoting Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 342 (1994)). The references to technical terminology in the Court Interpreters Act further suggest that Congress used “interpreter” in a technical sense, and it is therefore significant that relevant professional literature draws a line between “interpreters,” who “are used for oral conversations,” and “translators,” who “are, used for written communications.” Zazueta, supra n. 4, at 477; see also M. Frankenthaler, Skills for Bilingual Legal Personnel 67 (1982) (“While the translator deals with the written word, the interpreter is concerned with the spoken language”); Brislin, Introduction, in Translation: Applications and Research i (R. Brislin ed. 1976) (explaining that when both terms are used together, translation “refers to the processing [of] written input, and interpretation to the processing of oral input” (emphasis deleted)); J. Herbert, Interpreter’s Handbook 1 (2d ed. 1952) (“In the present-day jargon of international organisations, the words translate, translations, translator are used when the immediate result of the work is a written text; and the words interpret, interpreter, interpretation when it is a speech delivered orally”). That Congress specified “interpreters” but not “translators” is yet another signal that it intended to limit § 1920(6) to the costs of oral, instead of written, translation. In sum, both the ordinary and technical meanings of “interpreter,” as well as the statutory context in which the word is found, lead to the conclusion that § 1920(6) does not apply to translators of written materials. C No other rule of construction compels us to depart from the ordinary meaning of “interpreter.” The Court of Appeals reasoned that a broader meaning is “more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” 633 F. 3d, at 1221. But we have never held that Rule 54(d) creates a presumption of statutory construction in favor of the broadest possible reading of the costs enumerated in § 1920. To the contrary, we have made clear that the “discretion granted by Rule 54(d) is not a power to evade” the specific categories of costs set forth by Congress. Crawford, Fitting, 482 U. S., at 442. “Rather,” we have said, “it is solely a power to decline to tax, as costs, the items enumerated in §1920.” Ibid. Rule 54(d) thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of “interpreter.” Our decision is in keeping with the narrow scope of taxable costs. “Although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2666, pp. 202-203 (3d ed. 1998) (hereinafter Wright & Miller). Taxable costs are limited to relatively minor, incidental expenses as is eyident from § 1920, which lists such items as clerk fees, court reporter fees, expenses for printing and witnesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. Indeed, “the assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hairline Creations, Inc. v. Refalas, 664 F. 2d 652, 656 (CA7 1981). Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators. It comes as little surprise, therefore, that “costs almost always amount to less than the successful litigant’s total expenses in connection with a lawsuit.” 10 Wright & Miller §2666, at 203. Because taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in § 1920. As for respondent’s extratextual arguments, they are more properly directed at Congress. Respondent contends that documentary evidence is no less important than testimonial evidence and that it would be anomalous to.require the losing party to cover translation costs for spoken words but not for written words. Brief for Respondent 20. Respondent also observes that some translation tasks are not entirely oral or entirely written. Id., at 20-24. One task, called “ ‘sight translation,”’ involves the oral translation of a document. Id., at 21. Another task involves the written translation of speech. Ibid. And a third task, called “ ‘document comparison,’ ” involves comparing documents in the source and target language to verify that the two are identical. Id., at 21-22. Respondent argues that a narrow definition cannot account for these variations and that a bright-line definition of “interpreter” as someone who translates spoken and written words would avoid complication and provide a simple, administrable rule for district courts. Neither of these arguments convinces us that Congress must have intended to dispense with the ordinary meaning of “interpreter” in §1920(6). First, Congress might have distinguished between oral and written translation out of a concern that requiring losing parties to bear the potentially sizable costs of translating discovery documents, as opposed to the more limited costs of oral testimony, could be too burdensome and possibly unfair, especially for litigants with limited means. Cf. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 718 (1967) (noting the argument “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel”). Congress might also have concluded that a document translator is more akin to an expert or consultant retained by a party to decipher documentary evidence — like, for instance, a forensic accountant — than to an interpreter whose real-time oral translation services are necessary for communication between litigants, witnesses, and the court. Second, respondent has not shown that any of the hybrid translation/interpretation tasks to which it points actually arise with overwhelming frequency or that the problem of drawing the line between taxable and nontaxable costs in such cases will vex the trial courts. It certainly has not shown that any such problems will be more troublesome than the task of sifting through translated discovery documents to ascertain which can be taxed as necessary to the litigation. In any event, the present case does not present a hybrid situation; it involves purely written translation, which falls outside the tasks performed by an “interpreter” as that term is ordinarily understood. * * * Because the ordinary meaning of “interpreter” is someone who translates orally from one language to another, we hold that the category “compensation of interpreters” in § 1920(6) does not include costs for document translation. We therefore vacate the judgment of the United States Court of Ap- . peals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Compare BDT Products, Inc. v. Lexmark Int'l, Inc., 405 F. 3d 415, 419 (CA6 2005) (holding that document translation costs are taxable under § 1920(6) because the “definition of interpret expressly includes to ‘translate into intelligible or familiar language’ ” (quoting Webster’s Third New International Dictionary 1182 (1981))), with Extra Equipamentos E Exportando Ltda. v. Case Corp., 541 F. 3d 719, 727-728 (CA7 2008) (holding that document translation costs are not taxable under § 1920(6) because an interpreter is “normally understood [as] a person who translates living speech from one language to another”). A handful of other contemporaneous dictionaries used a similar formulation. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 665 (1977) (“[o]ne who interprets or translates; specifically, one who serves as oral translator between people speaking different languages”); 1 World Book Dictionary 1103 (C. Barn-hart & R. Barnhart eds. 1977) (“a person whose business is translating, especially orally, from a foreign language”); Cassell’s English Dictionary 617 (4th ed. 1969) (“[o]ne who interprets, esp. one employed to translate orally to persons speaking a foreign language”). This provision remains substantially the same as it appeared when first enacted. See 28 U. S. C. § 1827(d)(1) (1976 ed., Supp. II); see also 92 Stat. 2040. The simultaneous mode requires the interpreter “to interpret and to speak contemporaneously with the individual whose communication is being translated.” H. R. Rep. No. 95-1687, p. 8 (1978). The consecutive mode requires the speaker whose communication is being translated to pause so that the interpreter can “convey the testimony given.” Ibid. And the summary mode “allow[s] the interpreter to condense and distill the speech of the speaker.” Ibid.; see generally Zazueta, Attorneys Guide to the Use of Court Interpreters, 8 U. C. D. L. Rev. 471, 477-478 (1975). The dissent agrees that context should help guide our analysis, but instead of looking to the Court Interpreters Act, it looks to “the practice of federal courts both before and after § 1920(6)’s enactment.” Post, at 579 (opinion of Ginsburg, J.). The practice of federal courts after the Act’s enactment tells us nothing about what Congress intended at the time of enactment. And federal-court practice before the Act under other provisions of § 1920 tells us little, if anything, about what Congress intended when it added paragraph (6). We think the statutory context in which the word “interpreter” appears is a more reliable guide to its meaning. Some provisions within the United States Code use both “interpreter” and “translator” together, thus implying that Congress understands the terms to have the distinct meanings described above. See, e. g., 8 U. S. C. § 1555(b) (providing that appropriations for the Immigration and Naturalization Service “shall be available for payment of . . . interpreters and translators who are not citizens of the United States”); 28 U. S. C. § 530C(b)(1)(1) (providing that Department of Justice funds may be used for “[pjayment of interpreters and translators who are not citizens of the United States”). Our conclusion is buttressed by respondent’s concession at oral argument that there is no provision in the United States Code where it is clear that the word extends to those who translate documents. Tr. of Oral Arg. 39; see also Brief for Petitioner 32 (“And the Code is wholly devoid of any corresponding definition of ‘interpreter’ extending to the translation of written documents”). As respondent acknowledged, either the word is used in a context that strongly suggests it applies only to oral translation or its meaning is unclear. See Tr. of Oral Arg. 38. The dissent contends that document translation, no less than oral translation, is essential “to ecpiip the parties to present their case clearly and the court to decide the merits intelligently. ” Post, at 579. But a document translator is no more important than an expert or consultant in making sense of otherwise incomprehensible documentary evidence, yet expenses for experts and consultants are generally not taxable as costs. To be sure, forgoing document translation can impair a litigant’s case, but document translation is not indispensable, in the way oral translation is, to the parties’ ability to communicate with each other, with witnesses, and with the court. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_constit	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Michael Ray ORNDORFF, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. James William HOLMES, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Hoyt Franklin CLINES, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Darryl V. RICHLEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Michael Ray ORNDORFF, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. James William HOLMES, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Hoyt Franklin CLINES, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Darryl V. RICHLEY, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Nos. 88-2344, 88-2405. United States Court of Appeals, Eighth Circuit. Submitted April 13, 1989. Decided June 19, 1990. Gerald A. Coleman, West Memphis, Ark., for appellants. Jack Gillean, Little Rock, Ark., for appel-lees. Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge. BOWMAN, Circuit Judge. Michael Ray Orndorff, James William Holmes, Hoyt Franklin Clines, and Darryl V. Richley (petitioners) appeal, and A. L. Lockhart cross-appeals, from the judgment of the District Court granting petitioners partial habeas corpus relief. We affirm in part, vacate in part, and remand for further proceedings. In October 1981 petitioners were found guilty of the murder of Don Lehman in Rogers, Arkansas and were sentenced to death. The convictions were affirmed on direct appeal, Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984), and post-conviction relief was denied, Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984). Petitioners filed petitions for habeas corpus relief in the District Court pursuant to 28 U.S.C. § 2254 (1988) in June 1984, and the cases were consolidated for joint disposition. After conducting an evidentiary hearing, the District Court issued a thorough memorandum and order from which the parties now appeal. Although petitioners raised a number of grounds for habeas relief in the District Court, the principal issue below, and the ground upon which the District Court granted relief, concerned the state trial court’s admission into evidence of the testimony of Vickie Lehman, the victim’s daughter and a key prosecution witness. Unbeknownst to petitioners or to their trial counsel, Vickie and her mother Virginia Lehman had been placed under hypnosis by one Gene Peters roughly one month after the murder at the behest of the prosecutor. As the District Court found: During the sessions Peters would try to get his subjects to revisualize and relive the events of January 8 [1981] and, following each session, he and the Lehmans would report to the prosecutor’s office. Peters took notes of each session but no electronic recording devices were used. His notes were never turned over to the prosecutor and have since been destroyed. Neither Peters [n]or the prosecutor have any record of the questions asked and the responses given. Orndorff v. Lockhart, 707 F.Supp. 1062, 1066 (E.D.Ark.1988). Petitioners’ attorneys did not learn that Vickie Lehman had been hypnotized prior to trial until after they had filed the direct appeal in the Arkansas Supreme Court. Id. The District Court ruled that the prosecutor’s failure to apprise opposing counsel that Vickie Lehman had undergone hypnosis violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, and that the use of her testimony at trial was not harmless error. In fashioning its remedy, however, the District Court permitted the state, as an alternative to retrying petitioners, to commute their death sentences to life imprisonment without the possibility of parole. Petitioners appeal from this ruling, claiming that the District Court erred in permitting the state the option of commutation. Lockhart concedes that the use of Vickie Lehman’s testimony without disclosure of her hypnosis was constitutional error, but cross-appeals from the District Court’s finding that the error was not harmless. Given the scope of the cross-appeal, we assume without deciding that the District Court was correct in holding that the use of Vickie Lehman’s post-hypnotic testimony violated the Confrontation Clause. In the District Court, petitioners sought to establish that the use of this testimony was not harmless error by demonstrating that Vickie Lehman’s trial testimony differed significantly from statements she had given the police shortly after the crime occurred; the state sought to show that any variations were not material and that the error was therefore harmless. At issue were some 137 instances of such variations. Our difficulty with the District Court’s treatment of the hypnosis issue stems from the fact that, although it purported to make a harmless-error inquiry, the District Court did not analyze these variations but rather held that the prosecutor’s failure to disclose that Vickie Lehman had been hypnotized was “inherently prejudicial.” Orndorff, 707 F.Supp. at 1069. The District Court reasoned that Vickie Lehman’s testimony at trial was “inherently prejudicial” because post-hypnotic testimony may, generally speaking, appear more credible than ordinary testimony since the witness, through hypnosis, may gain a heightened conviction that what he or she believes to be the truth actually represents reality. See id. We believe this resolution of the harmless error inquiry to be unsound. Assuming that the prosecutor’s nondisclosure of Vickie Lehman’s hypnosis ran afoul of the Confrontation Clause, that error is not harmful simply because the jury might have found her testimony less credible had defense counsel been able to probe the issue of her hypnosis on cross-examination. The fact that defense counsel was denied use of a legitimate means of cross-examining an adverse witness is not in and of itself grounds for disturbing a guilty verdict. See Delaware v. Van Arsdall, 475 U.S. 673, 680-81, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986). The District Court’s view of the matter, we believe, amounts to the contrary view, since it premises a finding of harmful error on little more than the (presumptively) enhanced credibility of Vickie Lehman’s testimony and defense counsel’s inability to counteract it. As the Supreme Court stated in Van Arsdall: The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors ... including] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. 475 U.S. at 684, 106 S.Ct. at 1438 (citations omitted). We believe that the inquiry into the issue of harmless error in this case must begin with a comparison of Vicki Lehman’s pre-hypnosis statements with her trial testimony in light of Van Arsdall. The District Court should make this comparison with an eye toward sorting those things about which Vicki Lehman could testify without aid of hypnosis (that is, from actual memory) from those things about which she could testify only after being hypnotized. Unless this sorting process reveals significant variations, the error should be deemed harmless. We therefore vacate the judgment of the District Court in part and remand the matter to the District Court for further proceedings. The District Court already has determined that, beyond a reasonable doubt, the error here (if indeed there was harmful error) affected only the penalty phase of the trial, not the jury verdict finding petitioners guilty as charged. The court’s review of the entire record does reveal, beyond a reasonable doubt, that the petitioners were responsible for the robbery homicide for which they were tried. Their activities in preparation for the armed break-in and the events which later lead to their apprehension were fully documented through the testimony of thirty four prosecution witnesses. However, even though there is no question of their guilt for the crimes charged, the court is unable to say with confidence that the jury would have recommended the death penalty for each and every petitioner had defense counsel been informed of Vicki Lehman’s hypnosis. Critical portions of her testimony may have been disregarded by the jury had they known of the effects of hypnosis, or the trial court may have deemed some testimony inadmissible altogether. Cf. Little v. Armontrout, [835 F.2d 1240 (8th Cir.1987)], supra (trial court’s refusal to appoint an expert in hypnosis for an indigent defendant violated due process and rendered the trial fundamentally [unjfair). Orndorff v. Lockhart, 707 F.Supp. at 1070. Having reviewed the record, we are thoroughly satisfied, as was the District Court, that the harmful error here (if any) goes only to the imposition of the death penalty and not to the jury verdict finding petitioners guilty of capital felony murder. The evidence of petitioners’ guilt, even without Vicki Lehman’s testimony, is overwhelming. Lockhart argues that, because the District Court found error affecting only the penalty phase of the trial, the court erred in ordering that the writ of habeas corpus issue unless the state either retries petitioners or commutes their death sentences to life without parole. We agree. In a habeas case, no less than any other, the remedy must be commensurate with the harm. Accordingly, if in light of this opinion the District Court finds on remand that the use of Vicki Lehman’s testimony was not harmless error insofar as its effect upon the jury's recommendation that petitioners receive the death penalty is concerned, the court’s order granting habeas relief should give the state the option of either conducting a new sentencing proceeding or reducing the sentences to life without parole. See Pickens v. Lockhart, 714 F.2d 1455, 1469 (8th Cir.1983). We have considered petitioners’ additional claims of error and find them to be without merit. For the foregoing reasons, the judgment of the District Court is affirmed in part, vacated in part, and the matter remanded for further proceedings consistent with this opinion. . The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas. . For example, in Byrd v. Armontrout, 880 F.2d 1 (8th Cir.1989), we stated that any error with regard to the admission of post-hypnosis testimony fell short of constitutional magnitude where the record showed that the hypnosis did not affect the witness's testimony on any major point. 880 F.2d at 10, n. 10. We made this observation despite defendant's contention that the witness's belief in her post-hypnosis testimony had been enhanced by the hypnosis. See Byrd, 686 F.Supp. 743, 771 (E.D.Mo.1988). Similarly, in Williams v. Armontrout, 877 F.2d 1376 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990), we concluded that even though hypnosis had rendered a witness’s in-court identification of the defendant unreliable, habeas relief was not warranted because this identification "did not contribute to the conviction." Id. at 1380-81. . Having adjudicated the issue of the use of Vickie Lehman's testimony within the context of the Confrontation Clause, we need not consider whether the use of her testimony offends due process, as resolution of the due process claim would not affect in any way our disposition of this appeal. . In its cross-appeal the state also argues that the District Court erred in granting habeas relief to defendants Orndorff and Clines because they had requested the District Court not to consider any claim that would result only in the commutation of their death sentences to life imprisonment without parole, and to defendant Richley, who had moved the District Court to dismiss his habeas petition. However, in the joint reply brief filed by all four petitioners, they argue that the District Court did not err in granting habeas relief to all of them. We take this to constitute an abandonment by Orndorff, Clines, and Richley of the positions they took in this regard in the District Court, which abandonment renders the issue moot and thus not properly before us in this appeal. 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_authoritydecision	C	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. FIORE v. WHITE, WARDEN, et al. No. 98-942. Argued October 12, 1999 Decided November 30, 1999 Breyer, J., delivered the opmion for a unammous Court. James Brandon Lieber argued the cause for petitioner. With him on the briefs were M. Jean Clickner and Harold Gondelman. Robert A. Grad, Assistant Executive Deputy Attorney General of Pennsylvania, argued the cause for respondents. With him on the brief were D. Michael Fisher, Attorney General, pro se, and Andrea F. McKenna, Senior Deputy Attorney General. Saul M. Pilchen, Peter Goldberger, and Lisa Bondareff Kemler filed a brief for the National Association of Criminal Defense Lawyers urging reversal. A brief of amici curiae urging affirmance was filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, Michael B. Billingsley, Assistant Attorney General, Dan Schweitzer, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, M. Jane Brady of Delaware, Robert A Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Condon of South Carolina, Mark L. Earley of Virginia, and Christine 0. Gregoire of Washington. Justice Breyer delivered the opinion of the Court. The Commonwealth of Pennsylvania convicted codefend-ants William Fiore and David Searpone of violating a provision of Pennsylvania law forbidding any person to “operate a hazardous waste” facility without a “permit.” Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993) (reprinted at Appendix A, infra). Each codefendant appealed to a different intermediate state court, one of which affirmed Fiore’s conviction, the other of which reversed Searpone’s. The Pennsylvania Supreme Court denied further review of Fiore’s case, and his conviction became final. However, that court agreed to review Searpone’s case, and it subsequently held that the statutory provision did not apply to those who, like Searpone and Fiore, possessed a permit but deviated radically from the permit’s terms. Consequently, it set aside Searpone’s conviction. In light of the Pennsylvania Supreme Court’s decision in Commonwealth v. Scarpone, 535 Pa. 273, 634 A. 2d 1109 (1993), Fiore asked the Pennsylvania courts to reconsider his identical conviction. They denied his request. He then brought a federal habeas corpus petition in which he argued, among other things, that Pennsylvania’s courts, either as a matter of Pennsylvania law or as a matter of federal constitutional law, must apply the Scarpone interpretation of the statute to his identical ease. If this proposition of law is correct, he asserted, it would follow that the Commonwealth failed to produce any evidence at all with respect to one essential element of the crime (namely, the lack of a permit). On this reasoning, Fiore concluded that the Federal Constitution requires his release. See Jackson v. Virginia, 443 U. S. 307, 316 (1979); In re Winship, 397 U. S. 358, 364 (1970). The Federal District Court granted the habeas petition, but the Court of Appeals reversed that decision. We agreed to review the appellate court’s rejection of Fiore’s claim. Before deciding whether the Federal Constitution requires that Fiore’s conviction be set aside in light of Scarpone, we first must know whether Pennsylvania itself considers Scarpone to have explained what Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993), always meant, or whether Pennsylvania considers Scarpone to have changed the law. We invoke the Pennsylvania Supreme Court’s certification procedure in order to obtain that court’s view of the matter. See Appendix B, infra. I The relevant background circumstances include the following. 1. Fiore owned and operated a hazardous waste disposal facility in Pennsylvania. Scarpone was the facility’s general manager. Pennsylvania authorities, while conceding that Fiore and Searpone possessed a permit to operate the facility, claimed that their deliberate alteration of a monitoring pipe to hide a leakage problem went so far beyond the terms of the permit that the operation took place without a permit at all. A jury convicted them both of having “operate[d] a hazardous waste storage, treatment or disposal facility” without a “permit.” Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993); see Commonwealth v. Fiore, CC No. 8508740 (Ct. Common Pleas, Allegheny Cty., Pa., Jan. 19, 1988), p. 2, App. 6 (marking date of conviction as Feb. 18, 1986). The trial court upheld the conviction, despite the existence of a permit, for, in its view, the “alterations of the . . . pipe represented such a significant departure from the terms of the existing permit that the operation of the hazardous waste facility was im-permitted’ after the alterations were undertaken ....” Id., at 48, App. 44. 2. Fiore appealed his conviction to the Pennsylvania Superior Court. See 42 Pa. Cons. Stat. § 742 (1998) (granting the Superior Court jurisdiction over all appeals from a final order of a court of common pleas). That court affirmed the conviction “on the basis of the opinion of the court below.” Commonwealth v. Fiore, No. 00485 PGH 1988 (May 12, 1989), pp. 2-3, App. 99-100. The Pennsylvania Supreme Court denied Fiore leave to appeal on March 13, 1990; shortly thereafter, Fiore’s conviction became final. 3. Fiore’s codefendant, Searpone, appealed his conviction to the Pennsylvania Commonwealth Court. See 42 Pa. Cons. Stat. §762(a)(2)(ii) (1998) (granting the Commonwealth Court jurisdiction over appeals in regulatory criminal cases). That court noted the existence of a “valid permit,” found the Commonwealth’s interpretation of the statute “strained at best,” and set Scarpone’s conviction aside. Scarpone v. Commonwealth, 141 Pa. Commw. 560, 567, 596 A. 2d 892, 895 (1991). The court wrote: “The alteration of the monitoring pipe was clearly a violation of the conditions of the permit. But to say that the alteration resulted in the operation of a new facility which had not been permitted is to engage in a semantic exercise which we cannot accept. . . . [W]e will not let [the provision’s] language be stretched to include activities which clearly fall in some other subsection.” Ibid. The Pennsylvania Supreme Court affirmed the Commonwealth Court’s conclusion. It wrote: “[T]he Commonwealth did not make out the crime of operating a waste disposal facility without a permit.... Simply put, Mr. Searpone did have a permit. . . . [T]o conclude that the alteration constituted the operation of a new facility without a permit is a bald fiction we cannot endorse.... The Commonwealth Court was right in reversing Mr. Searpone’s conviction of operating without a permit when the facility clearly had one.” Commonwealth v. Scarpone, 535 Pa., at 279, 634 A. 2d, at 1112. 4. Fiore again asked the Pennsylvania Supreme Court to review his case, once after that court agreed to review Scarporie’s ease and twice more after it decided Searpone. See Appellee’s Supplemental App. in No. 97-3288 (CA3), pp. 59, 61 (including docket sheets reflecting Fiore’s filings on Jan. 30, 1992, Jan. 24, 1994, and Oct. 18, 1994). The court denied those requests. 5. Fiore then sought collateral relief in the state courts. The Court of Common Pleas of Allegheny County, Pa., refused to grant Fiore’s petition for collateral relief — despite Searpone — because “at the time of... conviction and direct appeals, the interpretation of the law was otherwise,” and “[t]he petitioner is not entitled to a retroactive application of the interpretation of the law set forth in Scarpone.” Commonwealth v. Fiore, CC No. 8508740 (Aug. 18, 1994), p. 6. On appeal, the Superior Court affirmed, both because Fiore had previously litigated the claim and because Fiore’s “direct appeal was no longer pending when the Supreme Court made the ruling which [Fiore] now seeks to have applied to his case.” Commonwealth v. Fiore, 445 Pa. Super. 401, 416, 665 A. 2d 1185, 1193 (1995). 6. Fiore sought federal habeas corpus relief. As we previously pointed out, supra, at 25, he argued that Pennsylvania had imprisoned him ‘Tor conduct which was not criminal under the statutory section charged.” App. 194. The Federal District Court, acting on a Magistrate’s recommendation, granted the petition. The Court of Appeals for the Third Circuit reversed, however, primarily because it believed that “state courts are under no constitutional obligation to apply their decisions retroactively.” 149 F. 3d 221, 222 (1998). 7. We subsequently granted Fiore’s petition for certiorari to consider whether the Fourteenth Amendment’s Due Process Clause requires that his conviction be set aside. HH h — I Fiore essentially claims that Pennsylvania produced no evidence whatsoever of one element of the crime, namely, that he lacked “a permit.” The validity of his federal claim may depend upon whether the interpretation of the Pennsylvania Supreme Court in Scarpone was always the statute’s meaning, even at the time of Fiore’s trial. Scarpone marked the first time the Pennsylvania Supreme Court had interpreted the statute; previously, Pennsylvania’s lower courts had been divided in their interpretation. Fiore’s and Searpone’s trial court concluded that § 6Q18.401(a)’s “permit” requirement prohibited the operation of a hazardous waste facility in a manner that deviates from the permit’s terms, and the Superior Court, in adjudicating Fiore’s direct appeal, accepted the trial court’s interpretation in a summary unpublished memorandum. Then, the Commonwealth Court, in Scarpone’s direct appeal, specifically rejected the interpretation adopted by the Superior Court in Fiore’s case. And the Pennsylvania Supreme Court in Scarpone set forth its authoritative interpretation of the statute, affirming the Commonwealth Court only after Fiore’s conviction became final. For that reason, we must know whether the Pennsylvania Supreme Court’s construction of the statute in Scarpone stated the correct understanding of the statute at the time Fiore’s conviction became final, or whether it changed the interpretation then applicable. Compare, e. g., Buradus v. General Cement Prods. Co., 52 A. 2d 205, 208 (Pa. 1947) (stating that “[i]n general, the construction placed upon a statute by the courts becomes a part of the act,/rom the very beginning”), with Commonwealth v. Fiore, supra, at 416-417, 665 A. 2d, at 1193; Commonwealth v. Fiore, CC No. 8508740 (Aug. 18, 1994), at 6 (refusing to apply the Scarpone interpretation because “at the time of [Fiore’s] conviction and direct appeals, the interpretation of the law was otherwise”). Ill We certify the following question to the Pennsylvania Supreme Court pursuant to that court’s Rules Regarding Certification of Questions of Pennsylvania law: Does the interpretation of Pa. Stat. Ann., Tit. 35, § 6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A. 2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore’s conviction became final? We respectfully request that the Pennsylvania Supreme Court accept our certification petition because, in our view, the answer to this question will help determine the proper state-law predicate for our determination of the federal constitutional questions raised in this case. We recommend that the Pennsylvania Supreme Court designate William Fiore (the petitioner here) as appellant and both Gregory White, Warden, and the Attorney General of the Commonwealth of Pennsylvania (the respondents here) as appellees. The Clerk of this Court is directed to transmit to the Supreme Court of Pennsylvania a copy of this opinion and the briefs and records filed with this Court in this ease. Judgment and further proceedings in this ease are reserved pending our receipt of a response from the Supreme Court of Pennsylvania. It is so ordered. APPENDIX A TO OPINION OP THE COURT Pennsylvania Stat. Ann. § 6018.401(a) (Purdon 1993) provides: “No person or municipality shall store, transport, treat, or dispose of hazardous waste within this Commonwealth unless such storage, transportation, treatment, or disposal is authorized by the rules and regulations of the department; no person or municipality shall own or operate a hazardous waste storage, treatment or disposal facility unless such person or municipality has first obtained a permit for the storage, treatment and disposal of hazardous waste from the department; and, no person or municipality shall transport hazardous waste within the Commonwealth unless such person or municipality has first obtained a license for the transportation of hazardous waste from the department.” (Emphasis added.) Section 6018.606(f) establishes criminal penalties for a violation of § 6018.401 and provides: “Any person who stores, transports, treats, or disposes of hazardous waste within the Commonwealth in violation of [§ 6018.401]... shall be guilty of a felony of the second degree and, upon conviction, shall be sentenced to pay a fine of not less than $2,500 but not more than $100,000 per day for each violation or to imprisonment for not less than two years but not more than ten years, or both.” (Footnote omitted.) APPENDIX B TO OPINION OF THE COURT “RULES REGARDING CERTIFICATION OF QUESTIONS OF PENNSYLVANIA LAW “1. This Court will accept Certification Petitions, on a trial basis, from January 1,1999 to January 1, 2000. “2. Any of the following courts may file a Certification Petition with this Court: “a. The United States Supreme Court; or “b. Any United States Court of Appeals. “3. A court may file a Certification Petition either on the motion of a party or sua sponte. “A. A Certification Petition shall contain the following: “a. A brief statement of the nature and stage of the proceedings in the petitioning court; “b. A brief statement of the material facts of the ease; “c. A statement of the question or questions of Pennsylvania law to be determined; “d. A statement of the particular reasons why this Court should accept certification; and “e. A recommendation about which party should be designated Appellant and which Appellee in subsequent pleadings filed with this Court. “f. The petitioning court shall attach to the Certification Petition copies of any papers filed by the parties regarding certification, e. g., a Motion for Certification, a Response thereto, a Stipulation of Facts, etc.” Pa. Rules of Court, p. 745 (1999). Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_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. UNITED STATES of America v. BUSK, James W., a/k/a Buski James W. Busk, Appellant. UNITED STATES of America v. James W. BUSK, Appellant. Nos. 82-1101, 82-1144. United States Court of Appeals, Third Circuit. Argued Sept. 16, 1982. Decided Nov. 16, 1982. Stanford Shmukler (argued), Philadelphia, Pa., for appellant; Stanton M. Lacks, Philadelphia, Pa., of counsel. Peter F. Vaira, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Gerard P. Egan, Asst. U.S. Atty., Taylor Aspinwall (argued), Sp. Asst. U.S. Atty., Philadelphia, Pa., for appellee. Before GIBBONS, WEIS and SLOVI-TER, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. James W. Busk is before us on separate appeals from judgments of sentence entered following two convictions. One conviction, No. 82-1101, is on four counts of an eight count indictment for willfully attempting to evade payment of the excise tax on wages and the special occupational tax on wagering activity. 26 U.S.C. § 7201 (1976). The other, No. 82-1144, is for conducting an illegal gambling enterprise. 18 U.S.C. §§ 1955 and 2 (1976). Busk’s principal contention, common to both appeals, is that both trial courts erred in denying his motion to suppress the fruits of a search of an apartment at 3123 Richmond Street, Philadelphia, Pa., conducted on February 20,1981, as well as materials seized from his person when he was detained before and during that search. The search was made pursuant to a warrant which, Busk contends, did not, as required by the fourth amendment, particularly describe the place to be searched. His detention, he contends, was an illegal arrest within the meaning of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). We conclude that the search warrant was invalid. Thus we reverse and remand for a new trial. In both eases the courts held suppression hearings. Each hearing dealt with the circumstances surrounding the issuance of a search warrant by a judge of the Philadelphia Municipal Court, and the execution of that warrant. The affidavit presented to the municipal court was by a Philadelphia police officer, Anthony P. Massaro. It disclosed that, as a result of a tip from an informant, premises at 3123 Richmond Street were placed under police surveillance oh February 17, 18, and 19; that Busk was seen on each day entering the location and staying approximately one hour; and that a telephone surveillance was conducted between the hours of 11:30 a.m. and 2:00 p.m. on each day, during which hours the phone was continually busy. The affidavit is set forth on a form, on the bottom of which is printed the search warrant. The form contains a printed legend: PROBABLE CAUSE BELIEF IS BASED ON THE FOLLOWING FACTS AND CIRCUMSTANCES The probable cause information is typed, following the legend, in the space provided.There is no description, in that typed information, of the premises to be searched. Elsewhere on the form is a space containing the printed legend: SPECIFIC DESCRIPTION OF PREMISES AND/OR PERSONS TO BE SEARCHED (Street and No., Apt. No., Vehicle, Safe Deposit Box, etc.) The printed warrant directs a search of “the above described premises or person.” Thus the language typed in the space provided under this printed legend sets forth the scope of the executing officer’s authority. That language is: 3123 Richmond St., 3-story brick row home, (entire property to be searched.) Another space on the printed form contains the printed legend: NAME OF OWNER, OCCUPANT OR POSSESSOR OF SAID PREMISES TO BE SEARCHED (If proper name is unknown, give alias and/or description) Typed in this space is “James Busk 44 W/M.” Testimony in a suppression hearing establishes that the 3100 block of Richmond Street comprises three-story attached row houses, each with a single front entrance, some of which are multiple dwellings. A photograph of the entrance to No. 3123 establishes that it is a multiple dwelling building, for outside the door there are three plainly visible separate door bells. The door leads to a common hall and stairwell, and there is a separate apartment on each floor. Officer Massaro testified that prior to obtaining the warrant the Philadelphia police had obtained information from gas and electric company records that an apartment on the second floor of 3123 Richmond Street was occupied by someone named Herron. Investigations and surveillance had shown the police that Herron was an associate of Busk. Busk’s name was not on the mailbox or door bell. Herron’s name is not mentioned in the probable cause affidavit or anywhere in the warrant. Officer Massaro testified that “like I say, investigation by Organized Crime and checks with the utilities and all, I assumed it was the second floor.” (N.T. Nov. 2, 1981 at 55). When asked why he did not specify the second floor, he answered: Well, I felt that different people — I felt that maybe it wasn’t the second floor — I mean for all I know, it could have been the entire property. (N.T. Nov. 2, 1981 at 57). Thus there is no question that Massaro intended to obtain and did obtain a warrant which would permit a search of the entire multiple dwelling building. Moreover there is no question but that the information obtained from the informant and other sources related to possible gambling activity in a single apartment in that building. Massaro and at least six other officers set out to execute the warrant on February 20, 1981 prior to 6:00 p.m. As they arrived in the 3100 block of Richmond Street, Massaro observed Busk leaving No. 3123. He ran after Busk, caught him, and showed him the warrant. He frisked Busk, relieving him of $16,000 and a set of keys. Busk was directed to accompany the officers, who went in error to a multiple dwelling at No. 3119 Richmond Street. They gained entrance to an apartment on the second floor, telling the occupant they had a search warrant. The second floor apartment was searched for a half hour. Next they gained entrance to a third floor apartment after telling the occupant they had a search warrant. That apartment was searched for an hour. Busk testified that he was strip searched in the second floor apartment. Finally the police realized they were in the wrong building and went to No. 3123. They proceeded to the second floor. The apartment door had a window, through which they saw two telephones. Using Busk’s keys they entered, and seized gambling paraphernalia. Both district judges denied Busk’s suppression motions, holding that as a matter of law the warrant satisfied the requirement of the fourth amendment that the warrant describe particularly the place to be searched. Both relied, in so ruling, on our decision in United States v. Bedford, 519 F.2d 650 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1120, 47 L.Ed.2d 323 (1976). That reliance was in this instance misplaced. In Bedford, citing with approval United States v. Higgins, 428 F.2d 232 (7th Cir.1970), we acknowledged the general rule that “a search warrant directed against an apartment house will usually be held invalid if it fails to describe the particular apartment to be searched with sufficient definiteness to preclude a search of other units located in the building and occupied by innocent persons.” Id. at 654-55. The warrant in Bedford directed a search of “1723 Fifth Avenue. Residence of Myrel [sic] Bedford and Mary Bedford (Mary Hughes).” Id. at 653. We held that reasonably construed the specific reference to the residence of Myrel and Mary Bedford restricted the authority of the officers executing the warrant to the single apartment occupied by them in the multiple dwelling at the Fifth Avenue address. So construed the warrant satisfied the standard of Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925), that the description be such that the executing officer can with reasonable effort identify the precise place intended. The warrant in this case differs from that in Bedford in several important respects. First, it unequivocally directs that the entire property be searched. That direction is in the very section of a printed form intended to contain the description of the place to be searched. The government urges that the reference in another part of the form to James Busk restricts the direction to a specific apartment. It does not, for in contrast with the description in Bed-ford of a residence of the Bedfords, the warrant does not tell the officer whether Busk is the owner or possessor of the entire building, or the occupier of a single apartment. Plainly Officer Massaro sought, and obtained, a warrant which authorized entry into all the apartments in the building if he should deem that necessary. The conduct of the officers in using the warrant to gain entrance to the multiple dwelling house at No. 3119 shows unequivocally that they so understood their authority. A warrant authorizing entry into all apartments in a multiple dwelling house when probable cause has been shown for the search of only one of them does not satisfy the particularity requirement of the fourth amendment. United States v. Higgins, 428 F.2d 232 (7th Cir.1970); United States v. Hinton, 219 F.2d 324 (7th Cir.1955); United States v. Parnaenter, 531 F.Supp. 975 (D.Mass.1982). Because the warrant was invalid, both courts should have suppressed the evidence obtained by searching the apartment. This holding requires a new trial, therefore it is not necessary to address Busk’s alternative ground for suppression, that the evidence used at his trial was obtained as a result of an illegal arrest within the meaning of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). The judgments appealed from will be reversed and the cases remanded for the entry of suppression orders in accordance with this opinion, and for new trials. . The affidavit also disclosed that the unnamed informant had been in the location on February 13 and 14 and had seen Busk taking numbers bets over the telephone. Busk challenges the sufficiency of the affidavit with respect to the informant’s reliability. Because we conclude that the warrant was defective, we do not reach this issue. . Charges against Busk in the Pennsylvania state court were dismissed, apparently because the warrant is invalid under Pennsylvania law. Question: Are there two issues in the case? A. no B. yes 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. CARTER v. SNOOK, Warden of U. S. Penitentiary. Circuit Court of Appeals, Fifth Circuit. October 24, 1928. No. 5315. Frank A. Doughman, of Atlanta, Ga., for appellant. J. W. Henley, Asst. U. S. Atty., of Atlanta, Ga., for appellee. Before WALKER and BRYAN, Circuit Judges, and DAWKINS, District Judge. WALKER, Circuit Judge. This is an appeal from an order discharging a writ of habeas corpus, which was issued pursuant to the prayer of a petition whieh was filed on February 4,1928. That petition complained of the detention of the petitioner in the United States penitentiary at Atlanta under a judgment, rendered in a consolidated ease on December 6, 1926, which, on petitioner’s pleas of guilty to two counts in one indictment, to three counts in another indictment, and to two counts in another indictment, sentenced him to be confined in said penitentiary for a period of eight years, commencing on the day he is committed to said penitentiary, and to pay the sum of $8,000 fine. Petitioner was committed to said penitentiary on December 8, 1926. The counts to which petitioner pleaded guilty charged sundry violations of the National Prohibition Act. The offense charged in each of five of those counts —a second offense of selling intoxicating liquor in violation of section 3, title 2, of the National Prohibition Act (27 USCA § 12)— was punishable by a maximum fine of $2,0.00 and imprisonment of not more than five years. This court has decided that where a defendant, convicted on two or more counts of an indictment charging separate offenses of the same kind, was given a sentence in gross for a term of imprisonment not exceeding the sum of the terms whieh might have been imposed under the counts separately, the sentence, although it may he irregular, is not a nullity, and the defendant cannot be discharged on habeas corpus. Blake v. Moyer, Warden (C. C. A.) 208 F. 678. But, even if the sentence of imprisonment in question properly could be regarded as a nullity to some extent, it was not a nullity except as to the part of the sentence which was in excess of the term of imprisonment 'which lawfully could be imposed on the conviction of the petitioner on one of the counts to which he pleaded guilty; and petitioner was not entitled to be discharged on habeas corpus prior to the expiration of the five-year term of imprisonment to which he was subject to be sentenced under any one of several counts on which he was convicted. De Bara v. United States (C. C. A.) 99 F. 942. It follows that the order discharging the writ was not erroneous, the five-year term of imprisonment imposable upon petitioner’s conviction under any one of several counts to which he pleaded guilty not having expired when the petition was sued out, and when the writ was discharged. That order is affirmed. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
sc_casedisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. PATE, WARDEN v. ROBINSON. No. 382. Argued January 26, 1966. Decided March 7, 1966. Richard A. Michael, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the brief were William G. Clark, Attorney General, and Philip J. Rock, Assistant Attorney General. John C. Tucker argued the cause for respondent. With him on the brief was Albert E. Jenner, Jr. Mr. Justice Clark delivered the opinion of the Court. In 1959 respondent Robinson was convicted of the murder of his common-law wife, Flossie May Ward, and was sentenced to imprisonment for life. Being an indigent he was defended by court-appointed counsel. It was conceded at trial that Robinson shot and killed Flossie May, but his counsel claimed that he was insane at the time of the shooting and raised the issue of his incompetence to stand trial. On writ of error to the Supreme Court of Illinois it was asserted that the trial court's rejection of these contentions deprived Robinson of due process of law under the Fourteenth Amendment. His conviction was affirmed, the court finding that no hearing on mental capacity to stand trial had been requested, that the evidence failed to raise sufficient doubt as to his competence to require the trial court to conduct a hearing on its own motion, and further that the evidence did not raise a “reasonable doubt” as to his sanity at the time of the offense. 22 Ill. 2d 162, 174 N. E. 2d 820 (1961). We denied certiorari. 368 U. S. 995 (1962). Thereupon, Robinson filed this petition for habeas corpus, which was denied without a hearing by the United States District Court for the Northern District of Illinois. The Court of Appeals reversed, 345 F. 2d 691 (1965), on the ground that Robinson was convicted in an unduly hurried trial without a fair opportunity to obtain expert psychiatric testimony, and without sufficient development of the facts on the issues of Robinson’s insanity when he committed the homicide and his present incompetence. It remanded the case to the District Court with directions to appoint counsel for Robinson; to hold a hearing as to his sanity when he committed the alleged offense; and, if it found him to have been insane at that time, to order his release, subject to an examination into his present mental condition. The Court of Appeals directed that the District Court should also determine upon the hearing whether Robinson was denied due process by the state court’s failure to conduct a hearing upon his competence to stand trial; and, if it were found his rights had been violated in this respect, that Robinson “should be ordered released, but such release may be delayed for a reasonable time ... to permit the State of Illinois to grant Robinson a new trial.” 345 F. 2d, at 698. We granted certiorari to resolve the difficult questions of state-federal relations posed by these rulings. 382 U. S. 890 (1965). We have concluded that Robinson was constitutionally entitled to a hearing on the issue of his competence to stand trial. Since we do not think there could be a meaningful hearing on that issue at this late date, we direct that the District Court, after affording the State another opportunity to put Robinson to trial on its charges within a reasonable time, order him discharged. Accordingly, we affirm the decision of the Court of Appeals in this respect, except insofar as it contemplated a hearing in the District Court on Robinson’s competence. Our disposition makes it unnecessary to reach the other reasons given by the Court of Appeals for reversal. I. The State concedes that the conviction of an accused person while he is legally incompetent violates due process, Bishop v. United States, 350 U. S. 961 (1956), and that state procedures must be adequate to protect this right. It insists, however, that Robinson intelligently waived this issue by his failure to request a hearing on his competence at the trial; and, further, that on the basis of the evidence before the trial judge no duty rested upon him to order a hearing sua sponte. A determination of these claims necessitates a detailed discussion of the conduct of the trial and the evidence touching upon the question of Robinson’s competence at that time. The uncontradicted testimony of four witnesses called by the defense revealed that Robinson had a long history of disturbed behavior. His mother testified that when he was between seven and eight years of age a brick dropped from a third floor hit Robinson on the head. “He blacked out and the blood run from his head like a faucet.” Thereafter “he acted a little peculiar.” The blow knocked him “cockeyed” and his mother took him to a specialist “to correct the crossness of his eyes.” He also suffered headaches during his childhood, apparently stemming from the same event. His conduct became noticeably erratic about 1946 or 1947 when he was visiting his mother on a furlough from the Army. While Robinson was sitting and talking with a guest, “he jumped up and run to a bar and kicked a hole in the bar and he run up in the front.” His mother asked “what on earth was wrong with him and he just stared at [her], and paced the floor with both hands in his pockets.” On other occasions he appeared in a daze, with a “glare in his eyes,” and would not speak or respond to questions. In 1951, a few years after his discharge from the service, he “lost his mind and was pacing the floor saying something was after him.” This incident occurred at the home of his aunt, Helen Calhoun. Disturbed by Robinson’s conduct, Mrs. Calhoun called his mother about six o’clock in the morning, and she “went to see about him.” Robinson tried to prevent Mrs. Calhoun from opening the door, saying “that someone was going to shoot him or someone was going to come in after him.” His mother testified that, after gaining admittance, “I went to him and hugged him to ask him what was wrong and he went to pushing me back, telling me to get back, somebody was going to shoot him, somebody was going to shoot him.” Upon being questioned as to Robinson’s facial expression at the time, the mother stated that he “had that starey look and seemed to be just a little foamy at the mouth.” A policeman was finally called. He put Robinson, his mother and aunt in a cab which drove them to Hines Hospital. On the way Robinson tried to jump from the cab, and upon arrival at the hospital he was so violent that he had to be strapped in a wheel chair. He then was taken in an ambulance to the County Psychopathic Hospital, from which he was transferred to the Kankakee State Hospital. The medical records there recited: “The reason for admission: The patient was admitted to this hospital on the 5th day of June, 1952, from the Hines Hospital. Patient began presenting symptoms of mental illness about a year ago at which time he came to his mother’s house. He requested money and when it was refused, he suddenly kicked a hole in her bar. “Was drinking and went to the Psychopathic Hospital. He imagined he heard voices, voices of men and women and he also saw things. He saw a little bit of everything. He saw animals, snakes and elephants and this lasted for about two days. He went to Hines. They sent him to the Psychopathic Hospital. The voices threatened him. He imagined someone was outside with a pistol aimed at him. He was very, very scared and he tried to call the police and his aunt then called the police. He thought he was going to be harmed. And he says this all seems very foolish to him now. Patient is friendly and tries to cooperate. “He went through an acute toxic episode from which he has some insight. He had been drinking heavily. I am wondering possibly he isn’t schizophrenic. I think he has recovered from this condition. I have seen the wife and she is in a pathetic state. I have no objection to giving him a try.” After his release from the state hospital Robinson’s irrational episodes became more serious. His grandfather testified that while Robinson was working with him as a painter’s assistant, “all at once, he would come down [from the ladder] and walk on out and never say where he is going and whatnot and he would be out two or three hours, and at times he would be in a daze and when he comes out, he comes back just as fresh. He just says he didn’t do anything. I noticed that he wasn’t at all himself.” The grandfather also related that one night when Robinson was staying at his house Robinson and his wife had a “ruckus,” which caused his wife to flee to the grandfather’s bedroom. Robinson first tried to kick down the door. He then grabbed all of his wife’s clothes from their room and threw them out in the yard, intending to set them on fire. Robinson got so unruly that the grandfather called the police to lock him up. In 1953 Robinson, then separated from his wife, brought their 18-month-old son to Mrs. Calhoun’s home and asked permission to stay there for a couple of days. She observed that he was highly nervous, prancing about and staring wildly. While she was at work the next day Robinson shot and killed his son and attempted suicide by shooting himself in the head. It appeared that after Robinson shot his son, he went to a nearby park and tried to take his life again by jumping into a lagoon. By his mother’s description, he “was wandering around” the park, and walked up to a policeman and “asked him for a cigarette.” It was stipulated that he went to the South Park Station on March 10, 1953, and said that he wanted to confess to a crime. When he removed his hat the police saw that he had shot himself in the head. They took him to the hospital for treatment of his wound. Robinson served almost four years in prison for killing his son, being released in September 1956. A few months thereafter he began to live with Flossie May Ward at her home. In the summer of 1957 or 1958 Robinson “jumped on” his mother’s brother-in-law and “beat him up terrible.” She went to the police station and swore out a warrant for his arrest. She described his abnormalities and told the officers that Robinson “seemed to have a disturbed mind.” She asked the police “to pick him up so I can have him put away.” Later she went back to see why they had not taken him into custody because of “the way he was fighting around in the streets, people were beating him up.” She made another complaint a month or so before Robinson killed Flossie May Ward. However, no warrant was ever served on him. The killing occurred about 10:30 p. m. at a small barbecue house where Flossie May Ward worked. At that time there were 10 customers in the restaurant, six of them sitting at the counter. It appears from the record that Robinson entered the restaurant with a gun in his hand. As he approached the counter, Flossie May said, “Don’t start nothing tonight.” After staring at her for about a minute, he walked to the rear of the room and, with the use of his hand, leaped over the counter. He then rushed back toward the front of the restaurant, past two other employees working behind the counter, and fired once or twice at Flossie May. She jumped over the counter and ran out the front door with Robinson in pursuit. She was found dead on the sidewalk. Robinson never spoke a word during the three-to-four-minute episode. Subsequently Robinson went to the apartment of a friend, Mr. Moore, who summoned the police. When three officers, two in uniform, arrived, Robinson was standing in the hall approximately half way between the elevator and the apartment. Unaware of his identity, the officers walked past him and went to the door of the apartment. Mrs. Moore answered the door and told them that Robinson had left a short time earlier. As the officers turned around they saw Robinson still standing where they had first observed him. Robinson made no attempt to avoid being arrested. When asked his address he gave several evasive answers. He also denied knowing anything about the killing. Four defense witnesses expressed the opinion that Robinson was insane. In rebuttal the State introduced only a stipulation that Dr. William H. Haines, Director of the Behavior Clinic of the Criminal Court of Cook County would, if present, testify that in his opinion Robinson knew the nature of the charges against him and was able to cooperate with counsel when he examined him two or three months before trial. However, since the stipulation did not include a finding of sanity the prosecutor advised the court that “we should have Dr. Haines’ testimony as to his opinion whether this man is sane or insane. It is possible that the man might be insane and know the nature of the charge or be able to cooperate with his counsel. I think it should be in evidence, your Honor, that Dr. Haines’ opinion is that this defendant was sane when he was examined.” However, the court told the prosecutor, “You have enough in the record now. I don’t think you need Dr. Haines.” In his summation defense counsel emphasized “our defense is clear .... It is as to the sanity of the defendant at the time of the crime and also as to the present time.” The court, after closing argument by the defense, found Robinson guilty and sentenced him to prison for his natural life. II. The State insists that Robinson deliberately waived the defense of his competence to stand trial by failing to demand a sanity hearing as provided by Illinois law. But it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial. See Taylor v. United States, 282 F. 2d 16, 23 (C. A. 8th Cir. 1960). In any event, the record shows that counsel throughout the proceedings insisted that Robinson’s present sanity was very much in issue. He made a point to elicit Mrs. Robinson’s opinion of Robinson’s “present sanity.” And in his argument to the .judge, he asserted that Robinson “should be found not guilty and presently insane on the basis of the testimony that we have heard.” Moreover, the prosecutor himself suggested at trial that “we should have Dr. Haines’ testimony as to his opinion whether this man is sane or insane.” With this record we cannot say that Robinson waived the defense of incompetence to stand trial. We believe that the evidence introduced on Robinson’s behalf entitled him to a hearing on this issue. The court’s failure to make such inquiry thus deprived Robinson of his constitutional right to a fair trial. See Thomas v. Cunningham, 313 F. 2d 934 (C. A. 4th Cir. 1963). Illinois jealously guards this right. Where the evidence raises a “bona fide doubt” as to a defendant’s competence to stand trial, the judge on his own motion must impanel a jury and conduct a sanity hearing pursuant to Ill. Rev. Stat., c. 38, § 104-2 (1963). People v. Shrake, 25 Ill. 2d 141, 182 N. E. 2d 754 (1962). The Supreme Court of Illinois held that the evidence here was not sufficient to require a hearing in light of the mental alertness and understanding displayed in Robinson’s “colloquies” with the trial judge. 22 Ill. 2d, at 168, 174 N. E. 2d, at 823. But this reasoning offers no justification for ignoring the uncontradicted testimony of Robinson’s history of pronounced irrational behavior. While Robinson’s demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue. Cf. Bishop v. United States, 350 U. S. 961 (1956), reversing 96 U. S. App. D. C. 117, 120, 223 F. 2d 582, 585 (1955), Likewise, the stipulation of Dr. Haines’ testimony was some evidence of Robinson’s ability to assist in his defense. But, as the state prosecutor seemingly admitted, on the facts presented to the trial court it could not properly have been deemed dispositive on the issue of Robinson’s competence. III. Having determined that Robinson’s constitutional rights were abridged by his failure to receive an adequate hearing on his competence to stand trial, we direct that the writ of habeas corpus must issue and Robinson be discharged, unless the State gives him a new trial within a reasonable time. This disposition accords with the procedure adopted in Rogers v. Richmond, 365 U. S. 534 (1961). We there determined that since the state court had applied an erroneous standard to judge the admissibility of a confession, the “defendant should have the opportunity to have all issues which may be determinative of his guilt tried by a state judge or a state jury under appropriate state procedures which conform to the requirements of the Fourteenth Amendment.” At 547-548. It has been pressed upon us that it would be sufficient for the state court to hold a limited hearing as to Robinson’s mental competence at the time he was tried in 1959. If he were found competent, the judgment against him would stand. But we have previously emphasized the difficulty of retrospectively determining an accused’s competence to stand trial. Dusky v. United States, 362 U. S. 402 (1960). The jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record. That Robinson’s hearing would be held six years after the fact aggravates these difficulties. This need for concurrent determination distinguishes the present case from Jackson v. Denno, 378 U. S. 368 (1964), where we held that on remand the State could discharge its constitutional obligation by giving the accused a separate hearing on the voluntariness of his confession. If the State elects to retry Robinson, it will of course be open to him to raise the question of his competence to' stand trial at that time and to request a special hearing thereon. In the event a sufficient doubt exists as to his present competence such a hearing must be held. If found competent to stand trial, Robinson would have the usual defenses available to an accused. The case is remanded to the District Court for action consistent with this opinion. It is so ordered. Nor do we pass on the contention that Robinson was denied his Sixth Amendment rights by the trial judge’s refusal to issue summonses for material witnesses. These witnesses were Miss Willie Ceola Peterson, Robinson’s mother; Mr. William H. Langham, his grandfather; Mrs. Helen Calhoun, his aunt; and Mrs. Alice Moore, a family friend. The Reverend Elmer Clemons was also shot and killed in the fracas. The indictment covering that offense was dismissed at the close of the trial in question. According to the testimony of an arresting officer the following exchange took place: “I asked him what his name was and he said, ‘My name is Ted.’ I said, ‘What is your real name?’ And he said, ‘Theodore Robinson.’ Then I asked him — I told him he was under arrest and he said, ‘For what?’ I said, ‘Well, you are supposed to be wanted for killing two people on the south side.’ I asked him did he know anything about it. He said, ‘No, I don’t know what you are talking about.’ So then I asked him where he lived and he said, T don’t live no place.’ “I said, ‘What do you mean you don’t live no place?’ He said, ‘That’s what I said.’ “So then pretty soon asked him again and he said, ‘Sometimes I stay with my mother.’ And I said, ‘Where does she live?’ He said, ‘Some address on East 44th Street.’ "So then we took him on to the 27th District and while we were making the arrest slip, asked him again his address and he said he lived at 7320 South Parkway. That’s about all he said. He didn’t know anything about any killing or anything.” His mother stated: “I think he is insane.” Mrs. Calhoun testified as follows: “Q. Do you have an opinion as to whether or not presently he is sane or insane? “A. He is sick. He is insane. “Q. First of all, do you have an opinion? “A. Yes. “Q. What is your opinion as to his present sanity? . . . “A. He is mentally sick.” Although defense counsel phrased his questions and argument in terms of Robinson's present insanity, we interpret his language as necessarily placing in issue the question of Robinson’s mental competence to stand trial. Counsel was simply borrowing the terminology of the relevant Illinois statutes and decisions. The state law in effect at the time of Robinson’s trial differentiated between lack of criminal responsibility and competence to stand trial, but used “insanity” to describe both concepts. Ill. Rev. Stat., e. 38, §§ 592, 593 (1963). The judges likewise phrased their decisions only in terms of sanity and insanity. See, e. g., People v. Baker, 26 Ill. 2d 484, 187 N. E. 2d 227 (1962). The statutory provisions and terminology in this field have now been clarified by the enactment of an article dealing with the “competency of accused.” Ill. Rev. Stat., c. 38, §§ 104-1 to 104-3 (1963), as amended by the Code of Criminal Procedure of 1963. Even if counsel may also have meant to refer to the statutory provisions dealing with commitment for present insanity, Ill. Rev. Stat., c. 38, §592 (1963), this fact would not affect the determination that counsel’s words raised a question as to competence that the trial judge should have considered. Moreover, as the Court of Appeals stressed, the trial judge did not give Robinson an opportunity to introduce expert testimony on the question of his sanity. The judge denied counsel’s request for a continuance of several hours in order to secure the appearance of a psychiatrist from the Illinois Psychiatric Institute. As defense counsel insisted in his closing argument : “In this case, which is a very serious case, the defendant has been able to cooperate with counsel with some reservations. . . . However, I do not feel that this present . . . lucidity bears on the issue of his sanity at the time of the crime and his sanity at the present time. I think the words sanity and insanity, the words are legal terms. I think that presently Mr. Theodore Robinson is in a lucid interval. I believe that from the witness stand you have heard testimony to indicate and prove that Mr. Theodore Robinson is presently insane. . . .” Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_casetyp1_7-3-1	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". Morris SHANIS and Beckie Shanis, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 11286, 11287. United States Court of Appeals Third Circuit. Argued May 18, 1954. Decided June 1, 1954. Leonard Sarner, Philadelphia, Pa. (Wolkin, Sarner & Cooper, Philadelphia, Pa., on the brief), for petitioners. Karl Schmeidler, Washington, D. C. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Lee A. Jackson, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges. PER CURIAM. The first question presented is whether petitioners’ partnership on the settlement of sell and buy contracts of “when issued” securities realized a net short-term capital gain as found by the Tax Court or a long-term capital gain and a short-term capital loss as urged by petitioners We find ample factual basis in the record for the Tax Court’s conclusion that what took place on the settlement date was a sa]e ancj exchange not of the contract rights but of the securities involved which resulted in a short-term capital transaction. The second question concerns the re-computations of taxpayers deficiencies. We think that these were properly calculated under Rule 50 of the rules of that court. They were the direct consequence „ ,, m ^ , of the Tax Court s findings and opinion , , and made necessary by the differences between those findings and opinion and the earlier determination by the Corn-missioner. They did not constitute new issues. The decisions of the Tax Court, 19 T.C. 641, will be affirmed. 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_circuit	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. MANNION et al. v. PENN. (Court of Appeals of District of Columbia. Submitted March 12, 1925. Decided April 6, 1925. Petition for Rehearing Denied April 18, 1925.) No. 1734. 1. Patents <§=>II2(I) — Junior parties in interference proceeding can deríve no benefit from fact that patent has been inadvertently issued to them pending senior party’s application. Junior parties in interference proceeding can derive no benefit from fact that patent has been inadvertently issued to them pending senior party’s application. 2. Patents <§=>91 (4)— Diligence of junior parties in interference proceeding in perfecting invention, entitling them to priority, held not shown. In interference proceeding, involving priority of patent consisting of plug of resilient material, designed to clean condenser tubes, evidence showing early experimentation by junior parties held not to show diligence in perfecting invention, entitling them to priority. Appeal from Commissioner of Patents. Interference proceeding involving priority of invention between Marion Penn, senior party, and Martin Mannion and Robert C. Arthur, junior parties. Prom a decision granting priority to the senior party, the junior parties appeal. Affirmed. J. E. Edson and W. L. Symons, both of Washington, D. C., for appellants. W. R. Kennedy, of New York City, for appellee. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. VAN ORSDEL, Associate Justice. The junior parties, Mannion and Arthur, appeal from the decision of the Commissioner of Patents awarding priority of invention to appellee, Penn. The invention set out in the claims of the issue is described in the opinion of the Commissioner as follows: “The invention relates to a plug designed to be forced by water or compressed air through condenser tubes for the purpose of cleaning the same. The plug in shape resembles a spool. Its flanged end portions act as wipers which wipe the sediment from the inner surface of the tube and expel it from the end thereof as the plug is forced through the tube.” Some of the counts state that the plug is made of resilient material, some that the intermediate portion is grooved, some that the intermediate portion tapers towards the flanges, and some that the flanged end portions have a greater diameter than the intemiediate portions. Mannion and Arthur filed their application July 1, 1921; Penn filed March 28, 1921. A patent inadvertently was issued to Mannion and Arthur during the pendency of Penn’s application. The burden of proof, therefore, rests upon Mannion and Arthur, the junior parties, since they can derive no benefit from the fact that they are patentees. Mannion and Arthur rely chiefly upon the making and testing of plugs made of wood with disks nailed to the ends. These plugs, it appears, were used to clean tubes of a condenser in 1918. The wooden plugs, however, proved practically worthless, since they would split in the operation. The counts of the issue, however, have little, if any, reference to the wooden plugs, but are limited to either an elastic plug or a plug with the intermediate portion between the flanges grooved. Mannion and Arthur produced evidence to the effect that, at the time the wooden leather plugs were tested, they had in contemplation a plug composed of rubber. The tribunals below held that, even assuming this testimony to be correct, Mannion and Arthur had not been diligent in perf ecting the invention, and could not claim a reduction to practice prior to their filing date. That they were lacking in diligence in this particular when Penn came into the field, is indubitably established. In this view of the case, the concurring decisions of the tribunals of the Patent Office, awarding priority to Penn, are correct. The decision of the Commissioner of Patents is affirmed. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_genapel1	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 is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellant, v. Walter C. ROBSON, DefendantAppellee. No. 72-3114. United States Court of Appeals, Ninth Circuit. April 13, 1973. Stephen V. Wilson, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellant. Clyde R. Maxwell (argued), Los Angeles, Cal., for defendant-appellee. Before DUNIWAY and WRIGHT, Circuit Judges, and RENFREW, District Judge. Of the Northern District of California. EUGENE A. WRIGHT, Circuit Judge: The government has appealed from an order of the district court suppressing certain exhibits. Respondent taxpayer was indicted on three counts of income tax evasion [26 U.S.C. § 7201] charging him with willfully failing to report more than $100,000 in taxable income for the calendar years 1965,1966, and 1967. During the trial below the government attempted to introduce into evidence three handwritten transcripts of some of respondent Robson’s business records taken by an Internal Revenue Agent in the office of Robson’s accountant with Robson’s approval. Respondent moved to suppress these exhibits, but the motion was untimely. The court indicated that while it agreed with respondent on the merits of his motion it could not order suppression at that time since such an order would not preserve the government’s right to appeal. At the court’s suggestion, respondent moved for a mistrial, followed by a motion for suppression. Both motions were granted, and the government’s right to appeal under 18 U.S.C. § 3731 was preserved. Inquiry into respondent’s tax matters dated from a telephone call to the local IRS office in March 1968. The caller, a young woman who stated that she was engaged to Robson in 1967, reported that he might be guilty of income tax evasion. She indicated the kind of business practice used and described some assets owned by Robson, including a boat, two automobiles and two lots. She also gave the names of banks where he did business. The informant indicated that she was filing a claim for a reward should any back taxes be assessed against and collected from respondent as a result of her information. According to established IRS procedure, this information was taken over the phone by a special agent of the Intelligence Division assigned to receive such intelligence information items from the public. The information item was subsequently evaluated by another agent in the Intelligence Division to determine if the item had potential for an Intelligence Division criminal investigation. In light of the fact that there were no prior information items in the files with respect to Robson, and also because the information given by the informant was vague on several key points, this agent decided that the item did not warrant a criminal investigation by the Intelligence Division. Again according to established procedures, the information item was then forwarded to the Audit Division for its evaluation. The Audit Division evaluated this information item in light of respondent’s returns for the years in question and apparently decided that an audit was in order to determine the existence of any additional tax liability. After the referral to the Audit Division, the informant called in again. This time she related that Robson had bragged that he had embezzled approximately $80,000 from one business during the previous year. She also indicated that by her estimate Robson had taken approximately $250,000 over the last three years. This information was not acted upon by Intelligence Division, but was instead simply forwarded to Audit Division to be added to the previous item. Agent Larry Koba of the Audit Division was assigned the Robson case. His assignment was to examine Robson’s tax affairs for the relevant years in order to determine the correct tax liability. His instructions were no different than those given him in examining any other return. Specifically, he was given no special instructions regarding fraud. On June 24, 1968, Agent Koba wrote to Robson indicating that the latter’s tax returns for 1965 and 1966 had been assigned to Koba for examination. Koba asked Robson to call and to arrange for a mutually convenient time for Koba to examine the books and records used by Robson in the preparation of his returns. Subsequently Robson’s accountant, Mr. Gillmore, called Koba to arrange for an appointment. The record discloses that Agent Koba at no time informed Robson of his Fifth and Sixth Amendment rights. Nor was Robson informed by Agent Koba of the criminal potential inherent in his investigation, or of Robson’s right under the Fourth Amendment to demand a warrant before submitting his records for examination. After auditing the records, Koba concluded that Robson had received over $100,000 in income that had not been reported in his returns. Pursuant to standing orders to refer any case to the Intelligence Division upon the discovery of an indication of fraud during the course of an audit, Agent Koba referred the Robson case to the Intelligence Division. That Division then conducted a criminal investigation, and this prosecution ensued. During the trial below, the government attempted to introduce into evidence three handwritten transcripts of Robson’s business records taken by Agent Koba during the course of his examination of the records. The district court granted respondent’s motion to suppress, on the following reasoning: The reason I am granting the motion, Mr. Wilson, is that it appears to me from the evidence in this case — and I take the word from a question asked by you — that the audit, the civil audit, stemmed solely from, for no other reason but, the investigative report and the conduct of the special agents in notifying the Revenue agents of the possible tax fraud of Mr. Robson. The proximate causation, the sole causation, the only reason, and not a single other reason, why there was a civil audit of Mr. Robson stemmed solely from the acts of the special agent. At that time the Government had one of two choices to make. The Government could have gone ahead and conducted an audit and would have at that time been limited in its remedies to civil relief. But if the Government did not want to limit its remedy to civil relief, it then had an obligation to inform the taxpayer and the taxpayer’s agents of his right to refuse the examination of his books. The government, under the facts of this case, did not have the right to exercise its options after the fact. The option had to be exercised before there was an examination of Mr. Robson’s books. If the Revenue agents had examined the books as a result of another practice or procedure or there had been another cause or there had been another reason why the books were audited, my ruling, of course, would have been different. But when the sole cause of the audit is a result of the efforts of the special agents, then the Revenue agent is acting as the agent of the special agent and the Fourth Amendment and Fifth Amendment rights of the defendant have been violated, primarily the Fourth Amendment. On the facts of this case, there are four possible grounds for the suppression of these exhibits: (1) under the Fifth and Sixth Amendments because Robson was not warned of his Miranda-type rights; (2) under the Fifth Amendment because the IRS agents violated due process by not following their internal regulations directing them to give certain warnings to taxpayers suspected of criminal violations; (3) under the Fourth Amendment because Robson's consent to the search was induced by trickery, deceit, or misrepresentations of Agent Koba; or (4) under the Fourth Amendment because Robson’s consent to the search was not a “knowing and voluntary” waiver of his right to demand a warrant. FIFTH AND SIXTH AMENDMENTS Miranda-Type Warning In Kohatsu v. United States, 351 F.2d 898 (9th Cir. 1965), we held that where agents of the Intelligence Division had properly identified themselves and disclosed their purpose to audit tax returns, they were under no duty to advise the taxpayer of his Fifth Amendment rights or of the criminal nature of the investigation. We reaffirm that holding, and refuse to follow the only circuit to adopt a contrary view, the Seventh. This court has repeatedly refused to extend the Miranda rule beyond its stated limits. Simon v. United States, 421 F.2d 667 (9th Cir. 1970). As we stated in Simon: “Absent custody in the conventional sense, we have declined to fault a government agent and reverse a conviction for failure to give a Miranda type warning unless the facts clearly demonstrated that the appellant was ‘deprived of his freedom by the authorities in any significant way.’ ” Id. at 668. Here respondent was not deprived of his freedom in any way and accordingly we hold that Agent Koba was under no duty to inform respondent of his Miranda-type rights, including the fact that the investigation could have potential criminal consequences. The fact that Agent Koba had an informant’s tip suggesting possible tax evasion in no was distinguishes the instant case. Feichtmeir v. United States, 389 F.2d 498 (9th Cir. 1968). FIFTH AMENDMENT Due Process On October 3, 1967, approximately one year before Agent Koba initiated his investigation, the Internal Revenue Service issued News Release No. 897, which stated in relevant part as follows: In response to a number of inquiries the Internal Revenue Service today described its procedures for protecting the Constitutional rights of persons suspected of criminal tax fraud, during all phases of its investigations. Investigation of suspected criminal tax fraud is conducted by Special Agents of the IRS Intelligence Division. This function differs from the work of Revenue Agents and Tax Technicians who examine returns to determine the correct tax liability. Instructions issued to IRS Special Agents go beyond most legal requirements to assure that persons are advised of their Constitutional rights. On initial contact with a taxpayer, IRS Special Agents are instructed to produce their credentials and state: “As a special agent, I have the function of investigating the possibility of criminal tax fraud.” If the potential criminal aspects of the matter are not resolved by preliminary inquiries and further investigation becomes necessary, the Special Agent is required to advise the taxpayer of his Constitutional rights to remain silent and to retain counsel. Respondent would have us say that Koba was acting as an agent of the Intelligence Division at the time of his initial contact with Robson and during the audit of his records. Assuming arguendo that the failure of the IRS to follow its procedures designed to protect the rights of taxpayers amounts to a violation of due process under the principle of United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), we find nothing in the record before us indicating that Koba was an agent of the Intelligence Division. Koba made the same type of civil audit that he conducted in all cases, regardless of the initial impetus for the audit. He had no instructions from the Intelligence Division, had no interim conferences with its representatives, and was under no obligation to report to it unless his audit uncovered an indication of fraud. In short, the investigation conducted by Koba was completely independent of the Intelligence Division, except for the fact that the informant’s tip that led to the audit originally came from that Division. That fact, however, in the context of this investigation, is meaningless. Every informant’s tip received by the IRS comes through the Intelligence Division. However, not every tip results in an Intelligence Division investigation. Such is the case here. The Intelligence Division concluded that the information in the tip did not warrant a criminal investigation, and none was conducted. The resulting investigation conducted by Koba was of no greater scope than a routine civil audit to determine tax liability. Accordingly, we conclude that the trial court was in error in concluding from these undisputed facts that Koba was an agent of the Intelligence Division. Having decided that, we hold that there was no violation of due process in Koba’s failure to give the warnings required of special agents of the Intelligence Division. FOURTH AMENDMENT Deceit, Trickery, and Misrepresentation It is a well established rule in this and other circuits that a consent search is unreasonable under the Fourth Amendment if the consent was induced by the deceit, trickery or misrepresentation of the Internal Revenue agent. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); United States v. Bland, 458 F.2d 1 (5th Cir. 1972); United States v. Jaskiewicz, 433 F.2d 415 (3rd Cir. 1970); United States v. Prudden, 424 F.2d 1021 (5th Cir. 1970); Spahr v. United States, 409 F.2d 1303 (9th Cir. 1969); Cohen v. United States, 405 F.2d 34 (8th Cir. 1968); Kohatsu v. United States, supra; United States v. Sclafani, 265 F.2d 408 (2nd Cir. 1959). Respondent urges that the failure of Agent Koba to advise Robson or his accountant that the true purpose of his audit was to verify an informant’s tip as to the crime of tax evasion constituted deceit and trickery sufficient to vitiate Robson’s consent to the search of his records. We disagree. In applying the principle first announced in Gouled v. United States, supra, we have consistently held that the failure of an IRS agent, be he Special or Revenue, to warn a taxpayer that an audit may have potential criminal ramifications does not render the search unreasonable. Spahr v. United States, supra; Kohatsu v. United States, supra; accord, United States v. Bland, supra; United States v. Stamp, 458 F.2d 759 (D.C. Cir. 1971); United States v. Striding, 437 F.2d 765 (6th Cir. 1971); United States v. Jaskiewicz, supra; United States v. Prudden, supra; Cohen v. United States, supra. However, the IRS agent must not affirmatively mislead the taxpayer into believing that the investigation is exclusively civil in nature and will not lead to criminal charges. Cohen v. United States, supra. The record undisputedly disclosed that Agent Koba did not represent his audit to be simply “civil” in nature. In fact, Agent Koba did not indicate to Robson that he intended to conduct a “civil” audit; rather, he told Robson that his tax returns “have been assigned to me for examination.” We therefore find that Agent Koba made no affirmatively misleading statements concerning the potential consequences of his audit. Respondent would have us hold, however, that Koba’s silence as to the criminal potential of his audit was an affirmative misrepresentation of the true nature of the audit. As the Fifth Circuit recently stated in United States v. Prudden, supra, 424 F.2d at 1032: “Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.” None of these factors was present here. As noted above, Agent Koba was under no duty to mention the possible criminal consequences of his audit, and the record discloses no intimation that Koba was ever queried as to the scope of his investigation. We therefore hold that Robson’s consent to the search of his records was not induced by Agent Koba’s deceit, trickery, or misrepresentation, and that the exhibits cannot be suppressed on that theory. FOURTH AMENDMENT Waiver of Right to Demand Warrant It is undisputed that Agent Koba did not inform Robson of his Fourth Amendment right to demand a warrant before making his records available for audit. It is also undisputed that Robson, through his agent Gillmore, did affirmatively consent to Koba’s search of his records. The question we must decide is whether Robson’s consent amounted to a “knowing and voluntary” waiver of his right to demand a warrant. At the outset we note our reaffirmanee today of the holding of Kohatsu v. United States, supra, that the fruits of an IRS agent’s search need not be suppressed because of his failure to warn the taxpayer of his Fifth Amendment right not to disclose anything that might incriminate him. A fortiori, one might conclude that Agent Koba’s failure to warn respondent simply that he had a right to demand a warrant also would not dictate suppression. That is the result we reach. This circuit has often considered the question of the waiver of a right to demand a warrant in the criminal search context. Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. 1971), cert. granted, 405 U.S. 953, 92 S.Ct. 1168, 31 L.Ed.2d 230 (1972); Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968); Cipres v. United States, 343 F.2d 95 (9th Cir. 1965). We said in Cipres v. United States, supra at 97, that: “ . . . [A] waiver cannot be conclusively presumed from a verbal expression of assent. The court must determine from all the circumstances whether the verbal assent reflected an understanding, uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld. . . ." The factual situation in this case is different from that in the foregoing cases, and we think that the rule quoted is not applicable here where there really was no search in the usual sense in which that word is used. We base our decision on the distinction we have recognized elsewhere between an administrative and a criminal search. United States v. Thriftimart, 429 F.2d 1006 (9th Cir. 1970); United States v. Schafer, 461 F.2d 856 (9th Cir. 1972); United States v. Alfred M. Lewis, Inc., 431 F.2d 303 (9th Cir. 1970). Agent Koba’s search is almost identical to the administrative searches involved in Thriftimart and Lewis, to the extent that Fourth Amendment rights are involved. In those cases we upheld searches of business premises by agents of the Food and Drug Administration which uncovered unsanitary conditions leading to criminal charges against the defendants under the Federal Food, Drug and Cosmetic Act. The defendants argued that since they were not warned they had a right to refuse entry absent the showing of a warrant and since there was no proof they knew they had such a right, the consent given was not an “uncoerced, and unequivocal election to grant the officers a license which the person knows may be freely and effectively withheld.” We held for the first time in Thriftimart that an administrative search is to be treated differently than a criminal search. The primary reason for this distinction was held to be: “In a criminal search the inherent coercion of the badge and the presence of armed police make it likely that the consent to a criminal search is not voluntary. Further, there is likelihood that confrontation comes as a surprise for which the citizen is unprepared. ...” 429 F.2d at 1009. We found that these circumstances were not present in an administrative search, and accordingly we held that: “ . . . [T]he absence of coercive circumstances and the credibility of a consent given to an inspection justify a departure from the Schoepflin rule in eases of administrative inspection. Here, the managers were asked for permission to inspect; the request implied an option to refuse and presented an opportunity to object to the inspection in an atmosphere uncharged with coercive elements. The fact that the inspectors did not warn the managers of their right to insist upon a warrant and the possibility that the managers were not aware of the precise nature of their rights under the Fourth Amendment did not render their consent unknowing or involuntary. . . . Their manifestation of assent, no matter how casual, can reasonably be accepted as waiver of warrant.” 429 F.2d at 1010. [Footnotes omitted.] We find this reasoning persuasive in disposing of the instant case. In the context of Fourth Amendment rights, respondent had nothing to gain by demanding a warrant. The audit of his records was inevitable. Further, his consent was given in a totally noncoercive atmosphere. Respondent was asked by letter to call Agent Koba to arrange for an appointment for an examination of his books. We hold therefore that Robson’s consent to the search of his records can reasonably be accepted as a waiver of warrant, even though the record does not disclose that Robson was aware of the precise nature of his Fourth Amendment rights. We conclude that the district court' erred in ordering suppression of the three exhibits. Accordingly, the order of the district court is reversed and the cause is remanded to that court for further proceedings. . The books in themselves were complete. Agent Koba concluded, however, that Robson’s disbursements greatly exceeded his acknowledged receipts for the years in question. On the basis of this information, Koba made the calculation of the additional tax due. . United States v. Dickerson, 413 F.2d 1111 (7th Cir. 1969). . Cf. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). . The Fourth Circuit has so held in United State v. Heffner, 420 F.2d 809 (1970). . See also, United States v. Hammond, 413 F.2d 608 (5th Cir. 1969); Kohatsu v. United States, supra. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_counsel1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES v. DICKINSON. SAME v. WITHROW. Nos. 5419, 5420. Circuit Court of Appeals, Fourth Circuit. Jan. 4, 1946. "Roger P.'Marqüis, Atty., Department of Justice, of Washington, D. C. (J.. Edward' Williams, Acting Head, Lands Division,' Department of Justice, of Washington, D. C., and Leslie E. Given, Ú. S. Atty., of Charleston, W. Va.,' on the brief), for appellant. Ernest K. James, of Charleston,'W. Va., for appellees. Before S'OPER, Circuit Judge, and COLEMAN and BARKSDALE, District Judges. SOPER, Circuit Judge. These appeals were taken by the United States from judgments against it'in two suits brought by landowners under the Tucker Act, 28 U.S.C.A. § 41 (20), to recover compensation for the taking of their, lands and for the erosion and intermittent flooding thereof caused by raising the water level of the Kanawha River in South Charleston, West Virginia, by the erection and operation of the Winfield Lock and Dam. Dickinson’s land consisted of a tract 3.1 acres in extent which bounded on the low-water mark of the river for a distance of 411 'feet. Dickinson acquired the land on August 16, 1937, and between that date and September 22, 1938, which the court found to be the date of the taking, he made substantial improvements thereon in the form of' grading and filling, construction of sewers, water and gas lines, the installation of a gasoline filling station and the erection of a large residence near the top of the river bank. By reason of raising the level of the river and the operation of . the dam 0.22 . acre of land was permanently submerged and 0.10 acre thereof lying between the elevation of 566 feet and 574 feet above mean sea level will be subject to intermittent flooding. The court found that on September 22, 1938, the 0.22 acre permanently flooded had a fair market value of $400 and the flowage easement to flood intermittently the 0.10 acre a fair market value of $75. The court also found that during the latter raises in the stage of the river, and after the attainment of the present permanent level of 566 feet, considerable erosion of the residue of the plaintiff’s property at the river bank occurred which was caused by the saturation and softening of the soil and the wave action thereon that resulted from the permanent flooding of the 0.22 acre of tire plaintiff’s land. For the damages caused by this erosion the District Judge allowed the property owner the sum of $4,245.63 on the theory that for this sum appropriate protective work along the river bank to prevent the erosion, consisting of a rock toe wall and stone riprapping up to an elevation of 569 feet, could have been installed. Withrow’s property is a tract of land, 'containing a number of city lots, and fronting on the river approximately 180 feet. The District Court found that 0.11 acre thereof was permanently submerged and 0.04 acre will be subject to intermittent flooding as the result of the raising of the level of the river and the operation of the dam. The court found that the land was taken on September 22, 1938, and that then the fair market value of the land permanently submerged was $200 and the fair market value of the flowage easement to flood intermittently the 0.04 acre was $35. The court also found that, during the latter stages in the rise of the river and after the attainment of the permanent pool stage of 566 feet above mean sea level, considerable erosion to the residue of the property at the river bank ■was caused by the saturation and softening of the soil and the wave action thereon which was the direct and proximate result of the taking of the 0.11 acre permanently flooded. For the damages caused by the erosion the court allowed the sum of $1,859.40 on the theory that for this sum of money the owner could have erected a rock toe wall and stone riprapping to an elevation of . 569 feet above sea level which would have protected the property from erosion. The first important contention raised by the United States is that both suits were barred by limitations under the Tucker Act because they were not instituted until the month of April, 1943, the complaint of Dickinson on April 1 and the complaint of Withrow on April 10, more than six years after the rights of action accrued. The decision of this question depends upon the date upon which the taking of the plaintiffs’ properties occurred and for this purpose it is necessary to consider the several steps which took place leading to the construction and completion of the dam and the raising of the river from time to time as the pool was filled. The improvement of the river to support a 9 foot channel by substituting four new locks and dams for those previously in place was authorized by the Acts of July 3, 1930, 46 Stat. 918, 928, and August 30, 1935, 49 Stat. 1028, 1035. The Winfield Lock and Dam was constructed under the authority of these Acts, and on July 1, 1936, notice was given to the holders of War Department permits in the area that the water elevation would be raised, and shrubbery and vegetation along the river banks were cut by the government. By October 21, 1936, construction of the dam had proceeded far enough to raise the elevation in the pool of a previous dam downstream from the plaintiffs’ properties which, however, were not affected thereby. Subsequently the river was raised by the operation of the Winfield Dam at the plaintiffs’ properties by gradual stages from a previous elevation of 554.65 to the present elevation of 566 feet above mean sea level, namely, on May 30, 1937, to 556 feet; on October 20, 1937, to 558 feet; on January 6, 1938, to 563.15 feet; on August 26, 1938 to 565 feet; on September 1, 1938, to 565.5 feet and on September 22, 1938, to 566 feet. The dam was officially inspected and accepted by the federal government on August 20, 1937. The District Judge held that the cause of action in each case accrued on September 22, 1938, when the pool was filled and the river was finally raised to the contemplated new level of 566 feet, an increase of 11.35 feet over the former normal level, whereby the lands of the plaintiffs were permanently submerged as above described. Under this holding the suits of the plaintiffs instituted in April, 1943, were not barred by limitations. The United States, however, contends that the taking occurred and the right of action accrued on October 21, 1936, before the lands of the plaintiffs were actually invaded, but when the construction of the dam had proceeded far enough to raise the level of the pool downstream below the lands of the plaintiffs. Alternatively the government suggests that the taking occurred on May 30, 1937, when the level of the river opposite the plaintiffs’ lands was first raised by the operation of the dam from 554.65 to 566 feet and plaintiffs’ lands were first partially submerged. It will be observed that if the earlier daté is accepted as correct, the pending suits were barred; but if the later date is accepted, the pending suits were brought in due time. In either event it is important to fix the precise date because it is said that the cases at bar were selected as tests to determine the legal principles to be applied in similar süits now pending in the District Court. It is conceded by both parties that although the use of the lands by the United States was continuous, only one cause of action accrued; and this position is sustained by the decisions which hold that when a permanent structure erected by government authority results in the invasion of or damage to land, only one right of action arises and this accrues upon the completion of the structure and the happening of the injury, and in this action, all damages, past, present and prospective are recoverable. Suehr v. Chicago Sanitary District, 242 Ill. 496, 90 N.E. 197; Carpenter v. Lancaster, 212 Pa. 581, 61 A. 1113; King v. Board of Council of City of Danville, 128 Ky. 321, 107 S.W. 1189; 4 Sutherland on Damages, 4 Ed., § 1039; 1 Am.Jur., Actions, § 117. The contention of the United States that the pending suits are barred by limitations rests primarily upon the decisions of the Court of Claims in County Court of Marion County, W. Va., v. United States, 53 Ct. Cl. 120, and Dooner et al. v. United States, 95 Ct. Cl. 392. In the first of these cases it was suggested that it might be said that the statute of limitations begins to run in cases of this kind when the dam is completed and put in operation, or when the first damage is suffered, or at some subsequent time when the taking is to be deemed complete. The case before the court concerned certain county roads which were occasionally invaded by intermittent floods alleged to be caused by the erection of a government dam which was completed and began to fill on November 3, 1903. The suit was not brought until November 5, 1911. The landowner claimed that the taking did not occur until 1911, contending that the statute did not begin to run until the cause of action was complete and the roads had been abandoned. But .the evidence showed that all the roads were subject to intermittent flooding as soon as the pool filled and the court therefore rejected the landowner’s contention and, without stating that the right of action accrued when the dam was finished or when the water first began to submerge the land, held that so far as there was any taking, it was complete when the water had reached pool level. The point was emphasized that the time of accrual of the right of action did not depend on the time when the county decided to abandon the use of the roads. Again, in the second cited case from the Court of Claims, Dooner et al. v. United States, 95 Ct.Cl. 392, 397, 399, it was held that the owner of permanently flooded lands was entitled to interest from the date when the land was completely submerged. We think that this is the rule to be applied in the cases now under consideration. The taking occurred in the course of the exercise by the United States of its right to improve the navigation of the river, but without prior condemnation or purchase of the land which it intended to invade. These circumstances gave rise to an implied contract to pay for the land taken, but the subject matter of the contract and the extent of the land to be taken were not established with certainty until the pool was raised to its permanent level. Until this occurred the whole matter was subject to government change and control and the taking was not complete. It is established that the mere fact that the government has undertaken a flood control project and completed a part thereof without the invasion of the land of abutting owners does not- amount to a taking thereof. United States v. Sponenbarger, 308 U.S. 256, 265, 60 S.Ct. 225, 84 L.Ed. 230; Danforth v. United States, 308 U.S. 271, 286, 60 S.Ct. 231, 84 L.Ed. 240. An intention ultimately to use the land is not sufficient to constitute a taking under these circumstances. When we come to the merits of the case we find no denial of liability on the part of the United States for the value of the land permanently submerged or for the damage, if any, to the land from permanent intermittent floods caused by the operation of the dam. Both invasions, if found to exist, are conceded to be takings for which compensation must be paid by the government under the rules established by the decisions, and the values placed by the District Judge upon the land are not attacked. The decision of the District Judge is attacked principally because he allowed substantial compensation — $4,245.63 in the case of Dickinson and $1,859.40 in the case of Withrow — for the erosion and damage caused by the raising of the pool to the residue of the property not permanently submerged. The United States contends that the losses suffered by the landowners in this respect were not the result of a taking of the property in the constitutional sense, but were merely consequential damages attendant upon a public undertaking for which no recovery can be allowed by the courts. Many cases are cited in which the courts have been called upon to consider damages to land from flooding or erosion caused by the erection of dams, dykes and other structures under governmental authority; and it has been necessary to draw the difficult line between the taking involved in the direct appropriation of private land for public use for which the United States is liable at the suit of the landowner, and the indirect consequential damages flowing from the construction of public structures which are recoverable only by act of Congress. These cases illustrate a variety of circumstances in which heavy damages from flooding or erosion took place and it was held that the United States was not liable for the loss sustained or for the cost of protective measures to prevent it. But these decisions do not touch the specific point upon which the landowners here rely, for in none of them was there a permanent submersion and an acknowledged taking of any part of the land such as has occurred in the cases now before the court. The landowners rest their case in this respect on another line of authority which holds that when part of an owner’s land is completely taken, he is entitled not only to compensation therefor but also to compensation for any damage occasioned to his remaining land. It was on this theory that the court below based its findings in the sums above stated for the cost of protecting the residue of the lands against erosion and flood damage. The court found as to the Dickinson property that between 5,000 and 7,000 cubic yards of the river bank broke off and slipped into the river, approximately thirty trees, ranging in diameter from six inches to one foot six inches, slipped into the river or were destroyed, and a large crack developed iri the earth above the top of the river bank and extended through the foundation of Dickinson’s residence causing substantial damage. This erosion and damage the court found to be due to the saturation and flooding of the soil and wave action as the direct and proximate result of the permanent flooding of the above described 0.22 acre of Dickinson’s land. With respect to Withrow’s land the court made the similar finding that considerable erosion of the river bank abutting the property occurred, a substantial part of the bank broke off and slipped into the river, approximately twenty trees ranging in diameter from six to twenty-four inches slipped into the river or were destroyed, and the unpaved portion of the river road near its dead end in front of Withrow’s residence subsided from four to eight inches. This erosion and damage was due to the same causes as in the case of Dickinson and was the result of the taking of the aforesaid described 0.11 acre of With-row’s land which was permanently flooded. The court also found that in view of the character and value of the properties as of September 28, 1938 when the pool was filled, it would have been sound economy for Dickinson to have spent the sum of $4,245.63 and for Withrow the sum of $1,-859.40 to protect the residue of their respective properties against erosion and damages. There is abundant authority to support this point of view, for example, United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L.R.A.,N.S., 1135, where a part of a farm was taken for the purpose of improving the navigation of a stream by the erection of government locks and dams, and in addition an easement of access from the land to a public road was destroyed. The court held that the government was liable for the damage to the residue, saying (219 U.S. at pages 183, 184, 185, 31 S.Ct. at page 163) : “ * * * Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted. * * * “The constitutional limitation upon the power of eminent domain possessed by the United States is that ‘private property shall not be taken for public use without just compensation.’ The ‘just compensation’ thus guaranteed obviously requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel, or single tract of land, shall be measured by the loss resulting to him from the appropriation. If, as the court below found, the flooding and taking of a part of the plaintiff’s farm has depreciated the usefulness and value of the remainder, the owner is not justly compensated by paying for only that actually appropriated, and leaving him uncompensated for the depreciation over benefits to that which remains. In recognition of this principle of justice it is required that regard be had to the effect of the appropriation of a part of a single parcel upon the remaining interest of the owner, by taking into account both the benefits which accrue and the depreciation which results to the remainder in its use and value. Thus, in Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 967, 42 L. Ed. 270, 283, it is said: ‘Consequently, when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened.’ ” See also, United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680; Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 156 A.L.R. 390; Lewis on Eminent Domain, 3d Ed., §§ 686 and 710. A more recent application of the rule is found in cases in which losses to the property of the Chicago, B. & Q. Railroad Company were occasioned by improvements in the navigation of the Mississippi River. In United States v. Chicago, B. & Q. R. Co., 8 Cir., 82 F.2d 131, 106 A.L. R. 942, certiorari denied 298 U.S. 689, 56 S. Ct. 957, 80 L.Ed. 1408, it wa§ shown that the level of the river was raised by a government dam to such a height as to flood twenty-four acres of the railroad’s property and to cover the right of way and railroad embankment to a point 3.45 feet below the top of the railroad ties. Hence it became necessary to raise and widen the embankment and to raise the tracks so as to create a freeboard of seven feet above the new level of the pool and also to raise culverts and bridges and riprapp the embankment with .rock. This work was necessary in order that the railroad might have as good and safe a track as it had before the improvement and to secure protection against the effect of 'saturation, wave action and distortion by ice. The suit was brought by the United States for condemnation of the floodway easement over the right of way and railroad embankment, and it was held that the railroad was entitled to recover not only the value of the twenty-four acres permanently submerged, which was comparatively small, but also the cost for the changes in the embankment and the railroad line which were needed to protect the railroad and enable it to continue in operation. A verdict in favor of the railroad for $240,000 was sustained. This decision was followed by United States v. Chicago, B. & Q. R. Co., 7 Cir., 90 F.2d 161, in which the railroad was allowed the sum of $400 for 1.6 acre submerged and the additional sum of $347,411.65 as just compensation for the damage to the remainder of the railroad’s property caused by the construction and operation of the dam. We think that this rule is applicable here and that in each case the landowner should be compensated for the loss to the residue of his property occasioned by the building of the dam. The District Judge, as we have seen, based the amount of the recovery in each case upon the reasonable cost, as of September 22, 1938, of protective work adequate to prevent the damage by erosion if installed prior to the raising of the level of the river. He found that the cost of such work in the Dickinson case would have been $4,245.63 and in the Withrow case $1,859.40 and that in each instance it would have been sound economy, in view of the character and nature of the property, to have made the expenditure. The United States argues that there was no showing as to whether or not these sums exceeded the damages from erosion and therefore should not have been allowed because the government is not liable for any sum greater than the market value of the property that might otherwise be destroyed. The testimony, however, shows that Dickinson’s property was wprth $45,000 and Withrow’s property $1*5,000 in September, 1938, and qualified witnesses testified that- in view of the character and value of the property, the expenditure of larger sums than those allowed by the court to prevent erosion and damages would have been economically justified. This evidence can only mean that the erosion unchecked would destroy property values equal to or in excess of the cost of preventive structures. The issue involved is one of fact, and there was evidence to support the finding of the judge. There was abundant evidence given at the hearing to show that erosion had resulted and would result from the operation of the dam; and it was the function of the trial court to determine the amount of the resultant damage. We find no reason to upset its findings in these respects. The United States also contends that Dickinson is not entitled to compensation for the permanent flooding of the entire 0.22 acre submerged, because in the year 1940, with the permission of the Secretary of War, he reclaimed the greater part thereof. This was done at a cost of $16,000 by the installation of protective work consisting of earth and rock fill to prevent further erosion and damage. The fill exceeded the amount of the river bank that had been washed into the river, with the result that all but 0.05 acre of the land originally submerged was reclaimed. It is therefore contended that Dickinson is entitled to be compensated only for the 0.05 acre, and the decision in Kelley’s Creek & N. R. Co. v. United States, 100 Ct.Cl. 396, 412, is cited in support of the contention. We disagree with the holding in that case insofar as it may be thought to lead to the conclusion that Dickinson was not entitled to be paid for the value of the entire acreage completely taken on September 26, 1938. At that time the land was taken under an implied contract on the part of the United States to pay for it. It is clear that the government was not relieved from this obligation by the mere fact that the landowner, with its approval, subsequently recovered a part of the acreage at his own expense. Finally, the government contends that there was no evidence to support the finding that the government took an easement to flood the land intermittently or to support the value placed upon the easement by the court. In neither aspect can the contention be sustained. The easement relates to the land between the permanent elevation of the pool at 566 feet and elevation 574 feet above sea level covering 0.10 acre of Dickinson’s land for which $75 was allowed and 0.04 acre of With-row’s land, for which $35 was allowed. Qualified witnesses estimated the diminution of value that would occur upon the assumption that the acreage would be flooded from time to time and these estimates were in excess of the allowances made by the court. There was in addition evidence to support the finding that the acreage would be subject to intermittent flooding by the operation of the dam. It was shown that the government had acquired by condemnation flowage easements extending to the elevation of 574 feet on non-navigable streams contributory to the Winfield Pool in the vicinity of the Dickinson and With-row properties and that within the eight foot area between the elevations of 566 and 574 feet the stage of the river can be made to rise and fall through the manipulation of the dam. The frequency within which the flooding will occur was not shown, but we think that the acquisition of flowage easements in the vicinity and the construction of the dam with equipment capable of flooding the lands to the elevation of 574 feet indicate an intent to subject the land to intermittent flooding and amount to the taking of easements for which compensation was due. See Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351. The judgments of the District Court will be Affirmed. The intention of the United States to use the land of a private owner as a suitable field over which to fire heavy guns installed for the purpose may constitute a taking; Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351; Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809; but it is obvious that in such a situation, the existence of the intention itself deprives the owner of the use of his land and constitutes a taking. Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 20 L.Ed. 257; Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142, 96 A. L.R. 1; United States v. Sponenbarger, 308 U.S. 256, 267, 60 S.Ct. 225, 84 L.Ed. 230; United States v. Willis, 4 Cir., 141 F.2d 314, 316. Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414; Manigault v. Springs, 199 U.S. 473, 26 S.Ct. 127, 50 L.Ed. 274; Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624; Cubbins v. Mississippi River Comm., 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041; Horstmann Co. v. United States, 257 U.S. 138, 42 S.Ct. 58, 66 L.Ed. 171; Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608; United States v. Chicago, M., St. P. & P. R, Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761; Salliotte v. King Bridge Co., 6 Cir., 122 F. 378, 65 L.R.A. 620; Franklin v. United States, 6 Cir., 101 F.2d 459; W. A. Ross Const. Co. v. Yearsley, 8 Cir., 103 F.2d 589;' Cf. Coleman v. United States, C.C. N.D.Ala., S.D., 181 F. 599. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_respond2_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 second 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. EAGLE COTTON OIL CO. v. SOUTHERN RY. CO. et al. No. 6126. Circuit Court of Appeals, Fifth Circuit. July 21, 1931. Rehearing Denied Sept. 4, 1931. E. B. Williams, of Meridian, Miss., Luther M. Walter, John S. Burchmore, and Nuel D. Belnap, all of Chicago, Ill., and Allan P. Matthew, of San Francisco, Cal. (Felix T. Smith and Samuel L. Wright, both of San Francisco, Cal., Paul M. Gregg and Jerry H. Powell, both of Los Angeles, Cal., F. F. Thomas, Jr., John 0. Moran, Pillsbury, Madison & Sutro, and McCutehen, Olney, Mannon & Greene, all of San Francisco, Cal., on the brief), for appellant. Joseph P. Cook, of Washington, D. C., A. S. Bozeman, of Meridian, Miss., W. N. Mc-Gehee, of Washington, D. C., W. E. Baskin, of Meridian, Miss., James E. Lyons and Burton Mason, both of San Francisco, Cal., and Harry McCall, of New Orleans, La. (Baskin, Wilboum & Miller and Bozeman & Cameron, all of Meridian, Miss., on the brief), for ap-pellees. Before BRYAN, FOSTER, and HUTCH-ESON, Circuit Judges. BRYAN, Circuit Judge. This is an action by appellant on an order of the Interstate Commerce Commission awarding reparation on account of excessive freight rates collected by the appellee railroad carriers for. the transportation of coal from mines in Alabama to Meridian, Miss. The' published rate of $2.03 per ton was held by the Commission, in a proceeding begun before it by appellant in 1925, to have been excessive to the extent that it exceeded $1.85 per ton from certain mines and $1.95 from other mines, and these lower rates were prescribed as reasonable for the future. Appellant was' awarded reparation measured by the difference between the lower and higher rates on shipments received within two years prior to the filing of its claim up to March 8, 1928, the date of the order. Eagle Cotton Oil Co. v. Southern Railway Co., 140 I. C. C. 131. No attack is made upon the reasonableness of the new rates as applied to the period covered by the reparation award. But the "District Judge, before whom the case was tried without a jury pursuant to written stipulation, held that the Commission was without power to award reparation on account of shipments made-prior to the date of the order finding the-$2.03 rate to be unreasonable, because that rate had been fixed and prescribed by it, and, this being so, must be conclusively presumed to have been a reasonable and lawful one. He therefore entered judgment denying appellant’s claim for damages. 46 F.(2d). 1006. On July 22, 1915, the Commission, in passing upon a proposed increase of rates on coal, authorized a rate not exceeding $1.-20 per ton from the Alabama mines to Meridian. Coal & Coke Rates in the Southeast, 35 I. C. C. 187, 202. An increase of 10 cents, per ton, effective July 1, 1917, was authorized in The Fifteen Per Cent. Case, 45 I. C. C. 303. On June 25, 1918, another general increase, but without reference to any particular rate, was made by the Director General, and thereupon appellees published a rate on coal of $1.80 per ton; but this was done without the order or approval of the Commission. On August 26, 1920, the Commission authorized a general increase of 25 per cent, of freight rates, but without approval of any particular rate, Ex parte 74, 58 I. C. C. 220; and appellees raised the rate here involved to $2.25 per ton. On July 1, 1922,, the Commission recommended a general reduction of 10 per cent, also without approval of any particular rate, Reduced Rates, 1922, 68 I. C. C. 676; and appellees thereupon reduced the rate in question, to $2.03 per ton, which they continued to collect up to March 9, 1928, when the $1.85 and $1.95 rates were established by the Commission as maximum rates from the Alabama mines to Meridian. Eagle Cotton Oil Co. v. Southern Railway Co. et al., supra. These several decisions of the Commission and the order of the Director General are relied on to establish the conclusion that the $2.03 rate was fixed and prescribed by the Commission as a reasonable and lawful maximum rate. The rate of $1.20 per ton on shipments of coal from the Alabama mines to Meridian was the only one that was definitely and specifically authorized by order of the Commission. That rate became effective oq October 1, 1915, and, as thej law then was, expired by limitation at the end of two years. Act Feb. 4,1887, § 15, as amended by Act June 29,1906, § 4, Act June 18,1910, § 12, 36 Stat. 551. It was not until after the passage of the Transportation Act of 1920 that a rate established by the Commission. could continue in force without time limit until its further order. 49 USCA § 15 (2). The Commission’s order in the Fifteen Per Cent. Case, supra, effective July 1, 1917, authorized a general increase of 10 cents per ton throughout the country, but did not purport to grant permission to advance any particular rate. The order of the Director General‘in 1918 likewise was dealing with all rates, and had no particular reference to rates on coal; besides it was not the equivalent of an order of the Commission, and the Commission by section 10 of the Federal Control Act (40 Stat. 456) was given the power to suspend or set it aside. But with the aid of the Director General’s order the rate did not exceed $1.80 per ton, which was less than the rates approved by the Commission upon the basis of which it awarded reparation to appellant. The carriers rely on Ex parte 74, supra, which authorized an increase of 25 per cent, in the general level of all rates, but without approval of any particular rate, as their authority for increasing the rate on coal shipped from the Alabama mines to Meridian to $2.25 per ton; and then claim that the rate became $2.03 per ton in 1922 as a result of the Commission’s decision in Reduced Rates, 1922, supra. The most that can reasonably be contended for in support of the proposition adopted by the trial court that the $2.03 rate was Commission-made is that it resulted from adding to and building up the rate of $1.20 that was authorized by the Commission. Aside from the fact that the Commission’s order entered in 1915, establishing the $1.20 rate, had expired by limitation long prior to the decisions in Ex parte 74 and in Reduced Rates, 1922, the law, as we understand it, is that orders of the Commission authorizing a general upward x’evision or adjustment of rates are not to be construed as giving approval of or prescribing particular rates. In Brimstone R. & Canal Co. v. United States, 276 U. S. 104, at page 122, 48 S. Ct. 282, 287, 72 L. Ed. 487, the Supreme Court said: “The general findings and permission of Ex parte 74 and Matter of Reduced Rates did not approve or fix any particular rate. * * * In them the Commission was dealing with the whole body of rates throughout the country — was looking at the general level of all rates — and the propriety of the rates to which the Brimstone Company was party was not the subject of particular investiga^ tion or consideration.” It is true that case was dealing with a division of rates, but the principle involved is the same here as it was there. The Supreme Court in that case cited with approval, among other decisions of the Commission, Steel & Tube Co. v. Director General, 61 I. C. C. 526, in which the Commission said that its “sanction of a general adjustment does not carry with it the approval of any particular rate.” We are of opinion, therefore, that the trial court erred in holding that the $2.03 rate collected from appellant by appellees had been fixed and prescribed by the Commission, and in entering judgment rejecting appellant’s claim for reparation. Having reached this conclusion, it is not necessary in this ease to decide, and we do not decide, whether or not the power of the Commission to award reparation extends to rates of its own making. The decision of the Circuit Court of Appeals for the Ninth Circuit in Atchison, Topeka & Santa Fe R. Co. et al. v. Arizona Grocery Co., 49 F.(2d) 563, to the effect that the Commission was without jurisdiction to award reparation, proceeded on the theory that the rates there involved were Commission-made. The rate here involved in our opinion was made by the carriers, and if it was, of course, the Commission, upon a valid finding that it was excessive, had the power to award reparation. 49 USCA § 9. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.- Question: This question concerns the second 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_appel2_8_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 second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant. Captain Henry BECK, Superintendent of the Pulaski County Penal Farm; and Clint Cavin, Surety, Appellants, v. Robert WINTERS, Appellee. No. 19278. United States Court of Appeals Eighth Circuit. Feb. 25, 1969. Certiorari Denied June 16, 1969. See 89 S.Ct. 2104. H. Clay Robinson, Deputy Pros. Atty., and Don Langston, Asst. Atty. Gen., Little Rock, Ark., for appellants, Joe Purcell, Atty. Gen., and Richard B. Atkisson, Pros. Atty., Little Rock, Ark., on the brief. Michael Meltsner, New York City, for appellee, Jack Greenberg, New York City, John W. Walker and Norman Chachkin, Little Rock, Ark., and Anthony G. Amsterdam, Philadelphia, Pa., on the brief. Before MATTHES, GIBSON and LAY, Circuit Judges. MATTHES, Circuit Judge. Captain Henry Beck, Superintendent of the Pulaski County Penal Farm and Clint Cavin, surety, have appealed from the order of the United States district court granting Robert Winters relief in this habeas corpus proceeding. The history of the litigation giving rise to this appeal is fully and accurately reported in the district court’s opinion in Winters v. Beck, 281 F.Supp. 793 (E.D.Ark. 1968). A brief resume of the relevant facts will suffice for the purpose of this opinion. Winters, appellee, was tried and convicted without the assistance of counsel in the Municipal Court of Little Rock, Arkansas, for obscene and lascivious conduct proscribed by Little Rock City Ordinance No. 25-121. He received the maximum punishment of 30 days in jail and a fine of $250, to which was added $4 costs. Being an indigent and unable to pay the fine, he was sentenced to the Pulaski County Penal Farm for a total of 284 days as provided by Ark.Stat.Ann. § 19-2416 (1968 Repl. Vol.). After appellee had exhausted his state remedies through habeas corpus proceedings, Winters v. Beck, 239 Ark. 1151, 397 S.W.2d 364 (1965), cert. denied, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966) (Mr. Justice Stewart dissenting), he filed a petition for habeas relief in the United States district court on November 8, 1966.- Judge Young initially dismissed appellee’s petition on the ground that petitioner was at liberty on bail and not under such restraint as was necessary to require consideration of the petition. On appeal we remanded for a rehearing on the merits in conformity with the teachings of the Supreme Court in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). On remand, Judge Young held a hearing and in a soundly-reasoned opinion found that “the interaction of the ‘dollar-a-day’ statute of Arkansas with a $254 fine plus a 30-day jail sentence constituted a ‘serious offense,’ and the failure of the trial court to notify petitioner of his right to the assistance of counsel and offer him counsel if he was unable financially to retain counsel rendered the judgment of conviction and sentence constitutionally invalid.” 281 F.Supp. at 801-802. On this appeal, appellants in their brief again questioned appellee’s standing to seek habeas relief, their position being that since he was at liberty on bond when he filed his petition in the United States district court, he was not in custody within the meaning of 28 U.S.C. § 2241, and consequently the writ was not available to him. Our remand of the district court’s first order, motivated by Jones v. Cunningham, supra, disposed of this issue. In oral argument the Assistant Attorney General of Akansas with candor conceded there was no merit to the lack of standing issue and expressly abandoned this contention. The clear-cut question we must decide is whether the district court was correct in holding that appellee was deprived of his Sixth Amendment right to assistance of counsel as applied to the states through the due process clause of the Fourteenth Amendment. We subscribe to Judge Young’s conclusion and affirm. The Attorney General of Arkansas argues. for a reversal on the premise that the question of whether an indigent state defendant is entitled to the assistance of counsel is one “which traditionally in the American system of government belongs to the Legislatures, not to the courts.” We are reminded that Arkansas has recognized its responsibility by enacting legislation providing “free counsel” for indigent defendants in felony cases, Ark. Stat.Ann. § 43-1203 (1964 Repl. Yol.); that the Supreme Court of Arkansas has held not only that appellee Winters was not entitled to counsel, but has expressly rejected the concept that an indigent defendant charged with a misdemeanor should have the assistance of counsel. Cableton v. State, 243 Ark. 351, 420 S.W. 2d 534 (1967). The Cableton Court was obviously influenced by practical considerations, stating in part: “[T]here are more justices of the peace in Arkansas than there are resident practicing lawyers and that there are counties in which there are no practicing lawyers. The impact of such a rule would seriously impair the administration of justice in Arkansas and impose an intolerable burden upon the legal profession.” Id. at 538-539. We are fully cognizant of and appreciate appellants’ concern over the federal government intruding into problems which are primarily relegated to the states for resolution. The Supreme Court recognized the importance of comity between the federal and state courts in Ker v. California, 374 U.S. 23, 31, 83 S.Ct. 1623, 1629, 10 L.Ed.2d 726 (1963): “Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, [364 U.S. 206, 221, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1961)] that ‘a healthy federalism depends upon the avoidance of needless conflict between state and federal courts’ by itself urging that ‘ [¶] ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.’ ” Accord, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). The sum of appellants’ argument is predicated on the pronouncement of the Supreme Court of Arkansas that “[a]ny change in the law of Arkansas, after certiorari was denied in the Winters case should either come through legislative enactment or by an express decision of the United States Supreme Court.” 420 S.W.2d at 537-538. Appellants are correct in suggesting that the Supreme Court of the United States has not expressly extended the Sixth Amendment right to assistance of counsel to misdemeanor cases. We are firmly convinced, however, from the rationale of the decisions of the Supreme Court that the fundamental right to counsel extends to a situation where, as here, the accused has been found guilty of an offense, which has resulted in imprisonment for approximately nine and one-half months. The Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in holding that the Sixth Amendment guarantee of the right to assistance of counsel is applicable to the states through the Fourteenth Amendment, proclaimed: “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. at 344, 83 S.Ct. at 796. Appellants seem to regard the Gideon opinion as limiting the application of the Sixth Amendment to offenses which are characterized as felonies. We are not persuaded that the Gideon Court intended to circumscribe the application of its decision to such narrow confines. The Court did not draw a line between felonies and any and all misdemeanors. Indeed, consideration of the opinion in context leads us to conclude that the right to counsel must be recognized regardless of the label of the offense if, as here, the accused may be or is subjected to deprivation of his liberty for a substantial period of time. It should be remembered that the Sixth Amendment makes no differentiation between misdemeanors and felonies. The right to counsel is not contingent upon the length of the sentence or the gravity of the punishment. Rather, it provides that the guarantee extends to “all criminal prosecutions.” Furthermore, we note that the phrase “all criminal prosecutions” applies not only to the right to counsel but also to the right to a jury trial. Logically the phrase should be accorded the same meaning as applied to both protections. Thus we believe significant the Supreme Court’s pronouncements in cases involving the jury trial guarantee. In Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed. 491 (1968), the Supreme Court held that “trial by jury in criminal cases is fundamental to the American scheme of justice,” and that the Fourteenth Amendment guarantees a right of jury trial in all state criminal cases “which — were they tried in a federal court — would come within the Sixth Amendment’s guarantee.” The Court concluded that a jury trial is guaranteed in all “serious offenses” but does not extend to “petty crimes.” The Duncan Court, however, declined to settle the exact location of the line between petty offenses and serious crimes. It did hold that on the facts before it, where appellant had been sentenced to 60 days in jail and fined $300 for commission of simple battery, a misdemeanor punishable up to two years, he was entitled to a jury trial. In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed. 522 (1968), the Court reiterated its holding in Duncan and held that the right to jury trial extends to serious criminal contempts and that denial of a jury trial to appellant, who was sentenced to imprisonment for two years, was constitutional error. Conversely, in Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), the Court did not extend the right to an offense it found petty. Dyke involved contemnors who were sentenced under a Tennessee criminal contempt statute that provided for a maximum penalty of 10 days in jail and a fine of $50. Relying on its earlier decision in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1537, 16 L.Ed.2d 629 (1966), where it held that a six-month sentence is short enough to be “petty,” the Court reasoned that the petitioners in this case were charged with a “petty offense” and had no federal constitutional right to jury trial. Equally significant, we believe, is the Court’s recent declaration that the right to assistance of counsel extends to juvenile proceedings “which may result in commitment to an institution in which the juvenile’s freedom is curtailed.” In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Fifth Circuit also has been faced with the question of how far the right to counsel extends and has refused to formulate a rigid rule which would either extend the protection to all criminal cases or limit it only to felonies. Rather, in adopting a broad view it expressly ruled that the safeguard extends to misdemeanor cases, but also recognized that there are some offenses where one would not be entitled to the services of an attorney at the expense of the state. In Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965), the defendant, without being advised that he was entitled to assistance of counsel, pled guilty to, was convicted of and sentenced to the maximum punishment of a $500 fine and 90 days in jail for possession of whiskey, a misdemeanor in Mississippi. Noting that such a plea had “grievous consequences,” the court held that under the facts of the case, defendant was unconstitutionally convicted because of the failure to advise him that he was entitled to be furnished counsel. In MacDonald v. Moore, 353 F.2d 106 (1965) the Fifth Circuit reaffirmed its position in Harvey. There appellant was charged (1) with illegal sale of gin, and (2) with illegal possession of whiskey and gin, both misdemeanors under Florida law. She pled guilty and was sentenced to 6 months in jail or $250 fine on each charge. Because the facts in the case were so similar to those in Harvey, the court stated that it was required to hold that appellant was entitled to assistance of counsel. Recently, the Fifth Circuit again dealt with the question and expressly held that under the Sixth and Fourteenth Amendments, right to counsel extends to misdemeanor cases. Goslin v. Thomas, 400 F.2d 594 (1968). Defendant asserted that he had been denied counsel in four Louisiana misdemeanor proceedings. In the last proceeding, defendant had been sentenced to jail for one year. Based on the rationale of the foregoing authorities, we conclude that the right to counsel cannot be dependent upon the mere arbitrary label that á state legislature attaches to an offense. We find it unnecessary to decide that all indigents have the right to assistance of counsel in all misdemeanor prosecutions, no matter how trivial may be the consequences. Whether a person accused of an offense labeled as a misdemeanor is entitled to counsel must be resolved upon proper consideration of all circumstances relative to the question. In addition to the financial status of the accused, the punishment that may be imposed if he is found guilty is certainly a vital factor. The trial court should fully explore all of the relevant circumstances, and if it is determined that counsel should be provided, the accused must be so informed. Unless he intelligently and knowingly waives the right, counsel should be furnished. We go no further in attempting to delineate the guidelines. In summary, it is abundantly clear that the district court correctly decided the question at issue. The order vacating the judgment and sentence is affirmed.. . Appellant Clint Cavin is surety on Winters’ appearance bond, and apparently was named as a respondent in the habeas corpus proceeding on the theory that Winters is in the technical custody of Cavin. He did not file a responsive pleading in the district court. . The statute under which appellee was committed provides in effect that prisoners confined in the county jail or city prison, by sentence of the mayor or police court, for a violation of a city ordinance may, by ordinance, be required to work out the amount of all fines, penalties, forfeitures and costs at the rate of $1 per day. Little Rock Ordinance No. 25-121, and § 19-2416, Ark. Stat.Ann., are reproduced in the district court’s opinion. . Apparently, the legal profession in Arkansas recognizes the need for more effective legislation in this area. The Arkansas Bar Association’s Special Committee on the Defense of Criminal Indigents is preparing proposed legislation that would establish a public defender— appointed counsel system in Arkansas not limited to felony cases. See Sizemore, Defense of Accused Indigents in Arkansas : New Hope or More of the Same, Arkansas Lawyer, Oct., 1968, at 6. . Appellants have placed undue reliance upon denial of certiorari in Winters v. Beck, supra. The sole significance of a denial of a petition for writ of certiorari is discussed at some length in Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-918, 70 S.Ct. 252, 94 L.Ed. 562 (1950). “[S]uch a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.” Id. at 919, 70 S.Ct. at 255. . Gideon expressly overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), in which the Supreme Court refused to hold that the Sixth Amendment right to counsel extended to the states through the Fourteenth Amendment. Betts did recognize, however, that where there existed special circumstances, the right to counsel became fundamental and essential so as to require applicability of the Sixth Amendment to the state through the due process clause of the Fourteenth Amendment. . Although there is no limitation on the right to appointed counsel in the majority opinion, Mr. Justice Harlan, in a concurring opinion, comments: “Whether the rule should extend to all criminal cases need not now be decided.” Id. at 351, 83 S.Ct. 792, at 801. That the reach of Gideon is not altogether clear is evidenced by two dissenting opinions of Justices in denials of certiorari in Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207 (1966) and DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966). In those opinions the Justices call for the Court to clarify its holding in Gideon. . The Court stated: “The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Id. at 36, 87 S.Ct. 1428, at 1448. . In MacDonald v. Moore, infra, the court commented: “It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state.” . The court quoted from Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633, 638 (1942) approvingly: “It is * * * suggested * * * that the constitutional guaranty of the right to the assistance of counsel in a criminal case does not apply except in the event of ‘serious offenses.’ No such differentiation is made in the wording of the guaranty itself, and we are cited to no authority, and know of none, making this distinction. * * * And so far as the right to the assistance of counsel is concerned, the Constitution draws no distinction between loss of liberty for a short period and such loss for a long one.” . The lower court’s opinion, Petition of Thomas, 261 F.Supp. 263 (W.D.La.1966), held that under Harvey and MacDonald, Gideon must be applied to all criminal cases. The Court of Appeals for the Fifth Circuit stopped short of this holding, stating that the only question was whether the right to counsel under the Sixth and Fourteenth Amendments extends to state misdemeanor cases. . Other federal cases rejecting the misdemeanor-felony dichotomy and holding that the Sixth Amendment right to assistance of counsel extends to misdemeanor prosecutions are: Brinson v. Florida, 273 F.Supp. 840 (S.D.Fla.1967) ; Rutledge v. City of Miami, 267 F.Supp. 885 (S.D.Fla.1967) ; Arbo v. Hegstrom, 261 F.Supp. 397 (D.Conn.1966). See Stubblefield v. Beto, 399 F.2d 424, 425 (5th Cir. 1968) (dissenting opinion) ; Wilson v. Blabon, 370 F.2d 997 (9th Cir. 1967). See also the following articles: Carlson, Appointed Counsel in Criminal Prosecutions : A Study of Indigent Defense, 50 Iowa L.Rev. 1073 (1965) ; Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962) ; Kamisar and Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1 (1963) ; Milroy, Court Appointed Counsel for Indigent Misdemeanants, 6 Ariz.L.Rev. 280 (1965) ; Comment, The Right to Counsel for Misdemeanants in State Courts, 20 Ark.L. Rev. 156 (1966). . As Mr. Justice Stewart pointed out in his dissent in the Court’s denial of certiorari in Winters v. Beck, supra, some misdemeanors in Arkansas are punishable by up to three years’ imprisonment. Ark. S tat. Ann. § 41-805 (1964 Repl. Vol.). . While we do not formulate and lay down an arbitrary, mechanical rule which could automatically and simply be applied in every case to determine whether the right to assistance of counsel attaches, we do point out some of the various approaches and suggestions promulgated by courts, commissions and statutes. In Brinson v. Florida, 273 F.Supp. 840 (S.D.Fla.1967), the court constructed what it believed to be the proper test: “The right to assistance of counsel is determined by the seriousness of the offense, measured by the gravity of the penalty to which the defendant is exposed on any given violation.’’ Id. at 843. The court further stated: “I hold that the minimum offense for which counsel must be provided is one which carries a possible penalty of more than six months imprisonment, which is the line of demarcation drawn in federal practice.” Id. at 845. The Criminal Justice Act of 1964, 18 U.S.C. § 3006A, provides that appointed counsel in federal courts shall be afforded to indigents in all felony and misdemeanor cases other than petty offenses. The Act defines petty offenses as those punishable by not more than six months imprisonment or $500 fine or both. 18 U.S.C. § 1. The ABA’s project on Minimum Standards for Criminal Justice in its tentative draft on Standards Relating to Providing Defense Services § 4.1 (1967) has recommended the following rule: “Counsel should be provided in all criminal proceedings for offenses punishable by loss of liberty, except those types of offenses for which such punishment is not likely to be imposed, regardless of their denomination as felonies, misdemeanors or otherwise.” In the Challenge of Crime in a Free Society : A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967), the commission recommended: “The objective to be met as quickly as possible is to provide counsel to every criminal defendant who faces a significant penalty, if he cannot afford to provide counsel himself. This should apply to cases classified as misdemeanors as well as to those classified as felonies.” Id. at 150. In its summary, however, the commission stated that “traffic and similar petty charges” are excluded from this recommendation. Id. at viii. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant? A. Indian Tribes B. Foreign Government C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY) D. International Organizations E. Other F. Not ascertained Answer:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. JAPAN WHALING ASSOCIATION et al. v. AMERICAN CETACEAN SOCIETY et al. No. 85-954. Argued April 30, 1986 Decided June 30, 1986 White, J., delivered the opinion of the Court, in which BURGER, C. J., and Powell, Stevens, and O’ConnoR, JJ., joined. Marshall, J., filed a dissenting opinion, in which BRENNAN, Blackmun, and Rehnquist, JJ., joined, post, p. 241. Associate Attorney General Burns argued the cause for petitioners in No. 85-955. With him on the briefs were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, Peter R. Steenland, Jr., Donald A. Carr, Dianne H. Kelly, and Abraham D. Sofaer. Scott C. Whitney argued the cause for petitioners in No. 85-954. With him on the briefs were Steven R. Perles and William H. Allen. William D. Rogers argued the cause for respondents in both cases. With him on the brief were James A. Beat and Donald T. Hornstein. Together with No. 85-955, Baldrige, Secretary of Commerce, et al. v. American Cetacean Society et al., also on certiorari to the same court. Steven R. Ross, Charles Tiefer, and Michael L. Murray filed a brief for the Speaker of the House of Representatives et al. as amici curiae urging affirmance. Justice White delivered the opinion of the Court. In these cases, we address the question whether, under what are referred to in these cases as the Pelly and Packwood Amendments, 85 Stat. 786, as amended, 22 U. S. C. § 1978; 90 Stat. 337, as amended, 16 U. S. C. § 1821 (1982 ed. and Supp. Ill), the Secretary of Commerce is required to certify that Japan’s whaling practices “diminish the effectiveness” of the International Convention for the Regulation of Whaling because that country’s annual harvest exceeds quotas established under the Convention. I For centuries, men have hunted whales in order to obtain both food and oil, which, in turn, can be processed into a myriad of other products. Although at one time a harrowing and perilous profession, modern technological innovations have transformed whaling into a routine form of commercial fishing, and have allowed for a multifold increase in whale harvests worldwide. Based on concern over the effects of excessive whaling, 15 nations formed the International Convention for the Regulation of Whaling (ICRW), Dec. 2, 1946, 62 Stat. 1716, T. I. A. S. No. 1849 (entered into force Nov. 10, 1948). The ICRW was designed to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry,” id., at 1717, and today serves as the principal international mechanism for promoting the conservation and development of whale populations. See generally Smith, The International Whaling Commission: An Analysis of the Past and Reflections on the Future, 16 Nat. Resources Law. 543 (1984). The United States was a founding member of the ICRW; Japan joined in 1951. To achieve its purposes, the ICRW included a Schedule which, inter alia, regulates harvesting practices and sets harvest limits for various whale species. Art. I, 62 Stat. 1717, 1723-1727. In addition, the ICRW established the International Whaling Commission (IWC), which implements portions of the Convention and is authorized to amend the Schedule and set new harvest quotas. See Art. Ill, 62 Stat. 1717-1718; Art. V, 62 Stat. 1718-1719. See generally Smith, supra, at 547-550. The quotas are binding on IWC members if accepted by a three-fourths’ majority vote. Art. Ill, 62 Stat. 1717. Under the terms of the Convention, however, the IWC has no power to impose sanctions for quota violations. See Art. IX, 62 Stat. 1720. Moreover, any member country may file a timely objection to an IWC amendment of the Schedule and thereby exempt itself from any obligation to comply with the limit unless and until the objection is withdrawn. Art. V, 62 Stat. 1718-1719. All nonobjecting countries remain bound by the amendment. Because of the IWC’s inability to enforce its own quota and in an effort to promote enforcement of quotas set by other international fishery conservation programs, Congress passed the Pelly Amendment to the Fishermen’s Protective Act of 1967. 22 U. S. C. § 1978. Principally intended to preserve and protect North American Atlantic salmon from depletion by Danish fishermen in violation of the ban imposed by the International Convention for the Northwest Atlantic Fisheries, the Amendment protected whales as well. See 117 Cong. Rec. 34752 (1971) (remarks of Rep. Pelly); H. R. Rep. No. 92-468, p. 6 (1971). The Amendment directs the Secretary of Commerce to certify to the President if “nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program....” 22 U. S. C. § 1978(a)(1). Upon certification, the President, in his discretion, may then direct the Secretary of the Treasury to prohibit the importation of fish products from the certified nation. § 1978(a)(4). The President may also decline to impose any sanctions or import prohibitions. After enactment of the Pelly Amendment, the Secretary of Commerce five times certified different nations to the President as engaging in fishing operations which “diminish[ed] the effectiveness” of IWC quotas. H. R. Rep. No. 95-1029, p. 9 (1978); 125 Cong. Rec. 22084 (1979) (remarks of Rep. Oberstar). None of the certifications resulted in the imposition of sanctions by the President. After each certification, however, the President was able to use the threat of discretionary sanctions to obtain commitments of future compli- ’ anee from the offending nations. Although “the Pelly Amendment... served the useful function of quietly persuading nations to adhere to the decisions of international fishery conservation bodies,” H. R. Rep. No. 95-1029, supra, at 9, Congress grew impatient with the- Executive’s delay in making certification decisions and refusal to impose sanctions. See 125 Cong. Rec. 22083 (1979) (remarks of Rep. Murphy); id., at 22084 (remarks of Rep. Oberstar). As a result, Congress passed the Packwood Amendment to the Magnuson Fishery Conservation and Management Act, 16 U. S. C. § 1801 et seq. (1982 ed. and Supp. III). This Amendment requires the Secretary of Commerce to “periodically monitor the activities of foreign nationals that may affect [international fishery conservation programs],” 22 U. S. C. § 1978(a)(3)(A); “promptly investigate any activity by foreign nationals that, in the opinion of the Secretary, may be cause for certification...,” § 1978(a)(3)(B); and “promptly conclude; and reach a decision with respect to; [that] investigation.” § 1978(a)(3)(C). To rectify the past failure of the President to impose the sanctions authorized — but not required — under the Pelly Amendment, the Packwood Amendment removes this element of discretion and mandates the imposition of economic sanctions against offending nations. Under the Amendment, if the Secretary of Commerce certifies that “nationals of a foreign country, directly or indirectly, are conducting fishing operations or engaging in trade or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling,” 16 U. S. C. § 1821(e)(2)(A)(i), the Secretary of State must reduce, by at least 50%, the offending nation’s fishery allocation within the United States’ fishery conservation zone. § 1821(e)(2)(B). Although the Amendment requires the imposition of sanctions when the Secretary of Commerce certifies a nation, it did not alter the initial certification process, except for requiring expedition. It was also provided that a certificate under the Packwood Amendment also serves as a certification for the purposes of the Pelly Amendment. § 1821(e)(2)(A)(i). In 1981, the IWC established a zero quota for the Western Division stock of Northern Pacific sperm whales. The next year, the IWC ordered a 5-year moratorium on commercial whaling to begin with the 1985-1986 whaling season and last until 1990. In 1982, the IWC acted to grant Japan’s request for a 2-year respite — for the 1982-1983 and 1983-1984 seasons — from the IWC’s earlier decision banning sperm whaling. Because Japan filed timely objections to both the IWC’s 1981 zero quota for Northern Pacific sperm whales and 1982 commercial whaling moratorium, under the terms of the ICRW, it was not bound to comply with either limitation. Nonetheless, as the 1984-1985 whaling season grew near, it was apparently recognized that under either the Pelly or Packwood Amendment, the United States could impose economic sanctions if Japan continued to exceed these whaling quotas. Following extensive negotiations, on November 13, 1984, Japan and the United States concluded an executive agreement through an exchange of letters between the Chargé d’Affaires of Japan and the Secretary of Commerce. See App. to Pet. for Cert, in No. 85-955, pp. 102A-109A. Subject to implementation requirements, Japan pledged to adhere to certain harvest limits and to cease commercial whaling by 1988. Id., at 104A-106A. In return and after consulting with the United States Commissioner to the IWC, the Secretary determined that the short-term continuance of a specified level of limited whaling by Japan, coupled with its promise to discontinue all commercial whaling by 1988, “would not diminish the effectiveness of the International Convention for the Regulation of Whaling, 1946, or its conservation program.” Id., at 107A. Accordingly, the Secretary informed Japan that, so long as Japan complied with its pledges, the United States would not certify Japan under either Amendment. See id., at 104A. Several days before consummation of the executive agreement, several wildlife conservation groups filed suit in District Court seeking a writ of mandamus compelling the Secretary of Commerce to certify Japan. Because in its view any taking of whales in excess of the IWC quotas diminishes the effectiveness of the ICRW, the District Court granted summary judgment for respondents and ordered the Secretary of Commerce immediately to certify to the President that Japan was in violation of the IWC sperm whale quota. 604 F. Supp. 1398, 1411 (DC 1985). Thereafter, Japan’s Minister for Foreign Affairs informed the Secretary of Commerce that Japan would perform the second condition of the agreement-withdrawal of its objection to the IWC moratorium— provided that the United States obtained reversal of the District Court’s order. App. to Pet. for Cert, in No. 85-955, pp. 116A-118A. A divided Court of Appeals affirmed. 247 U. S. App. D. C. 309, 768 F. 2d 426 (1985). Recognizing that the Pelly and Packwood-Magnuson Amendments did not define the specific activities which would “diminish the effectiveness” of the ICRW, the court looked to the Amendments’ legislative history and concluded, as had the District Court, that the taking by Japanese nationals of whales in excess of quota automatically called for certification by the Secretary. We granted certiorari, 474 U. S. 1053 (1986), and now reverse. rH i — j We address first the Japanese petitioners’ contention that the present actions are unsuitable for judicial review because they involve foreign relations and that a federal court, therefore, lacks the judicial power to command the Secretary of Commerce, an Executive Branch official, to dishonor and repudiate an international agreement. Relying on the political question doctrine, and quoting Baker v. Carr, 369 U. S. 186, 217 (1969), the Japanese petitioners argue that the danger of “embarrassment from multifarious pronouncements by various departments on one question” bars any judicial resolution of the instant controversy. We disagree. Baker carefully pointed out that not every matter touching on politics is a political question, id., at 209, and more specifically, that it is “error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Id., at 211. The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.” United States ex rel. Joseph v. Cannon, 206 U. S. App. D. C. 405, 411, 642 F. 2d 1373, 1379 (1981) (footnote omitted), cert. denied, 455 U. S. 999 (1982). As Baker plainly held, however, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary’s decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation’s foreign relations, and we recognize the premier role which both Congress and the Executive play in this field. But under the Constitution, one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones. We conclude, therefore, that the present cases present a justiciable controversy, and turn to the merits of petitioners’ arguments. HH I — I I — I The issue before us is whether, in the circumstances of these cases, either the Pelly or Packwood Amendment required the Secretary to certify Japan for refusing to abide by the IWC whaling quotas. We have concluded that certification was not necessary and hence reject the Court of Appeals’ holding and respondents’ submission that certification is mandatory whenever a country exceeds its allowable take under the ICRW Schedule. Under the Packwood Amendment, certification is neither permitted nor required until the Secretary makes a determination that nationals of a foreign country “are conducting fishing operations or engaging in trade or taking which diminishes the effectiveness” of the ICRW. It is clear that the Secretary must promptly make the certification decision, but the statute does not define the words “diminish the effectiveness of” or specify the factors that the Secretary should consider in making the decision entrusted to him alone. Specifically, it does not state that certification must be forthcoming whenever a country does not abide by IWC Schedules, and the Secretary did not understand or interpret the language of the Amendment to require him to do so. Had Congress intended otherwise, it would have been a simple matter to say that the Secretary must certify deliberate taking of whales in excess of IWC limits. Here, as the Convention permitted it to do, Japan had filed its objection to the IWC harvest limits and to the moratorium to begin with the 1985-1986 season. It was accordingly not in breach of its obligations under the Convention in continuing to take whales, for it was part of the scheme of the Convention to permit nations to opt out of Schedules that were adopted over its objections. In these circumstances, the Secretary, after consultation with the United States Commissioner to the IWC and review of the IWC Scientific Committee opinions, determined that it would better serve the conservation ends of the Convention to accept Japan’s pledge to limit its harvest of sperm whales for four years and to cease all commerical whaling in 1988, rather than to impose sanctions and risk continued whaling by the Japanese. In any event, the Secretary made the determination assigned to him by the Packwood Amendment and concluded that the limited taking of whales in the 1984 and 1985 coastal seasons would not diminish the effectiveness of the ICRW or its conservation program, and that he would not make the certification that he would otherwise be empowered to make. The Secretary, of course, may not act contrary to the will of Congress when exercised within the bounds of the Constitution. If Congress has directly spoken to the precise issue in question, if the intent of Congress is clear, that is the end of the matter. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). But as the courts below and respondents concede, the statutory language itself contains no direction to the Secretary automatically and regardless of the circumstances to certify a nation that fails to conform to the IWC whaling Schedule. The language of the Pelly and Packwood Amendments might reasonably be construed in this manner, but the Secretary’s construction that there are circumstances in which certification may be withheld, despite departures from the Schedules and without violating his duty, is also a reasonable construction of the language used in both Amendments. We do not understand the Secretary to be urging that he has carte blanche discretion to ignore and do nothing about whaling in excess of IWC Schedules. He does not argue, for example, that he could refuse to certify for any reason not connected with the aims and conservation goals of the Convention, or refuse to certify deliberate flouting of schedules by members who have failed to object to a particular schedule. But insofar as the plain language of the Amendments is concerned, the Secretary is not forbidden to refuse to certify for the reasons given in these cases. Furthermore, if a statute is silent or ambiguous with respect to the question at issue, our longstanding practice is to defer to the “executive department’s construction of a statutory scheme it is entrusted to administer,” Chevron, supra, at 844, unless the legislative history of the enactment shows with sufficient clarity that the agency construction is contrary to the will of Congress. United States v. Riverside Bayview Homes, Inc., 474 U. S. 121, 131 (1985). See Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125 (1985). » — I <! Contrary to the Court of Appeals’ and respondents views, we find nothing in the legislative history of either Amendment that addresses the nature of the Secretary’s duty and requires him to certify every departure from the IWC’s scheduled limits on whaling. The Pelly Amendment was introduced in 1971 to protect Atlantic salmon from possible extinction caused by overfishing in disregard of established salmon quotas. Under the International Convention for the Northwest Atlantic Fisheries (ICNAF), zero harvest quotas had been established in 1969 to regulate and control high seas salmon fishing, 117 Cong. Rec. 34751 (1971) (remarks of Rep. Dingell). Denmark, Germany, and Norway, members of the ICNAF, exercised their right to file timely objections to the quotas, however, and thus were exempt from their limitations. Although respondents are correct that Congress enacted the Pelly Amendment primarily as a means to enforce those international fishing restrictions against these three countries, particularly Denmark, they fail to establish that the Amendment requires automatic certification of every nation whose fishing operations exceed international conservation quotas. Both the Senate and House Committee Reports detail the “conservation nightmare” resulting from Denmark’s failure to recognize the ICNAF quota; a position which “effectively nullified” the ban on high seas harvesting of Atlantic salmon. S. Rep. No. 92-582, pp. 4-5 (1971); H. R. Rep. No. 92-468, pp. 5-6 (1971). In addition, Danish operations were seen as leading to the “eventual destruction of this valuable sports fish,” a matter of “critical concern” to both the Senate and House Committees. S. Rep. No. 92-582, at 4; H. R. Rep. No. 92-468, at 5. There is no question but that both Corn-mittees viewed Denmark’s excessive fishing operations as “diminish[ing] the effectiveness” of the ICNAF quotas, and envisioned that the Secretary would certify that nation under the Pelly Amendment. The Committee Reports, however, do not support the view that the Secretary must certify every nation that exceeds every international conservation quota. The discussion on the floor of the House by Congressman Pelly and other supporters of the Amendment further demonstrates that Congress’ primary concern in enacting the Pelly Amendment was to stave off the possible extermination of both the Atlantic salmon as well as the extinction of other heavily fished species, such as whales, regulated by international fishery conservation programs. 117 Cong. Rec. 34752-34754 (1971) (remarks of Reps. Pelly, Wylie, Clausen, and Hogan). The comments of Senator Stevens, acting Chairman of the reporting Senate Committee and the only speaker on the bill during the Senate debate, were to the same effect. See id., at 47054 (if countries continue indiscriminately to fish on the high seas, salmon may become extinct). Testimony given during congressional hearings on the Pelly Amendment also supports the conclusion that Congress had no intention to require the Secretary to certify every departure from the limits set by an international conservation program. Subsequent amendment of the Pelly Amendment in 1978 further demonstrates that Congress used the phrase, “diminish the effectiveness,” to give the Secretary a range of certification discretion. The 1978 legislation expanded coverage of the Pelly Amendment “to authorize the President to embargo wildlife products from countries where nationals have acted in a manner which, directly or indirectly, diminishes the effectiveness of any international program for the conservation of endangered or threatened species.” H. R. Rep. No. 95-1029, p. 8 (1978). This extension was premised on the success realized by the United States in using the Amendment to convince other nations to adhere to IWC quotas, thus preserving the world’s whale stocks. Id., at 9. In the House Report for the 1978 amendment, the Merchant Marine and Fisheries Committee specifically addressed the “dimmish the effectiveness” standard and recognized the Secretary’s discretion in making the initial certification decision: “The nature of any trade or taking which qualifies as diminishing the effectiveness of any international program for endangered or threatened species will depend on the circumstances of each case. In general, however, the trade or taking must be serious enough to warrant the finding that the effectiveness of the international program in question has been diminished. An isolated, individual violation of a convention provision will not ordinarily warrant certification under this section.” Id., at 15. This statement makes clear that, under the Pelly Amendment as construed by Congress, the Secretary is to exercise his judgment in determining whether a particular fishing operation “diminishes the effectiveness” of an international fishery conservation program like the IWC. The Court of Appeals held that this definition applies only to the 1978 addition to the Pelly Amendment, designed to enforce the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Mar. 3, 1973, 27 U. S. T. 1087, T. I. A. S. No. 8249, and not to the ICRW. We are unpersuaded. Congress perceived the two Conventions as seeking the same objectives. Both programs are designed to conserve endangered or threatened species, whether it be the sperm whale or the stumptail macaque. See H. R. Rep. No. 95-1029, pp. 9-10 (1978). This explains why the House Report noted that the purpose behind the 1978 extension of the Pelly Amendment was “to expand the success the United States has achieved in the conservation of whales to the conservation of endangered and threatened species.” Id., at 9. Both Conventions also operate in a similar, and often parallel, manner, and nothing in the legislative history of the 1978 amendment shows that Congress intended the phrase “diminish the effectiveness” to be applied inflexibly with respect to departures from fishing quotas, but to be applied flexibly vis-á-vis departures from endangered species quotas. Without strong evidence to the contrary, we doubt that Congress intended the same phrase to have significantly different meanings in two adjoining paragraphs of the same subsection. See Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 488-489 (1985); Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U. S. 624, 633 (1983). Congress’ explanation of the scope of the Secretary’s certification duty applies to both the original Pelly Amendment and the 1978 amendment: the Secretary is empowered to exercise his judgment in determining whether “the trade or taking [is] serious enough to warrant the finding that the effectiveness of the international program in question has been diminished.” H. R. Rep. No. 95-1029, supra, at 15. Enactment of the Packwood Amendment did not negate the Secretary’s view that he is not required to certify every failure to abide by ICW’s whaling limits. There were hearings on the proposal but no Committee Reports. It was enacted as a floor amendment. It is clear enough, however, that it was designed to remove executive discretion in imposing sanctions once certification had been made — as Senator Packwood put it, “to put real economic teeth into our whale conservation efforts,” by requiring the Secretary of State to impose severe economic sanctions until the transgression is rectified. 125 Cong. Rec. 21742 (1979). But Congress specifically retained the identical certification standard of the Pelly Amendment, which requires a determination by the Secretary that the whaling operations at issue diminish the effectiveness of the ICRW. 16 U. S. C. § 1821(e)(2)(A)(i). See 125 Cong. Rec. 21743 (1979) (remarks of Sen. Magnuson); id., at 22083 (remarks of Rep. Breaux); id., at 22084 (remarks of Rep. Oberstar). We find no specific indication in this history that henceforth the certification standard would require the Secretary to certify each and every departure from ICW’s whaling Schedules. It may be that in the legislative history of these Amendments there are scattered statements hinting at the per se rule advocated by respondents, but read as a whole, we are quite unconvinced that this history clearly indicates, contrary to what we and the Secretary have concluded is a permissible reading of the statute, that all departures from IWC Schedules, regardless of the circumstances, call for immediate certification. V We conclude that the Secretary’s construction of the statutes neither contradicted the language of either Amendment, nor frustrated congressional intent. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S., at 842-843. In enacting these Amendments, Congress’ primary goal was to protect and conserve whales and other endangered species. The Secretary furthered this objective by entering into the agreement with Japan, calling for that nation’s acceptance of the worldwide moratorium on commercial whaling and the withdrawal of its objection to the IWC zero sperm whale quota, in exchange for a transition period of limited additional whaling. Given the lack of any express direction to the Secretary that he must certify a nation whose whale harvest exceeds an IWC quota, the Secretary reasonably could conclude, as he has, that, “a cessation of all Japanese commercial whaling activities would contribute more to the effectiveness of the IWC and its conservation program than any other single development.” Affidavit of Malcolm Baldrige, Brief for Petitioners in No. 85-955, Addendum III, pp. 6A-7A. We conclude, therefore, that the Secretary’s decision to secure the certainty of Japan’s future compliance with the IWC’s program through the 1984 executive agreement, rather than rely on the possibility that certification and imposition of economic sanctions would produce the same or better result, is a reasonable construction of the Pelly and Packwood Amendments. Congress granted the Secretary the authority to determine whether a foreign nation’s whaling in excess of quotas diminishes the effectiveness of the IWC, and we find no reason to impose a mandatory obligation upon the Secretary to certify that every quota violation necessarily fails that standard. Accordingly, the judgment of the Court of Appeals is Reversed. The details of the Japanese commitments were explained in a summary accompanying the letter from the Chargé d’Affaires to the Secretary. First, the countries agreed that if Japan would withdraw its objection to the IWC zero sperm whale quota, Japanese whalers could harvest up to 400 sperm whales in each of the 1984 and 1985 coastal seasons without triggering certification. Japan’s irrevocable withdrawal of that objection was to take place on or before December 13, 1984, effective April 1, 1988. App. to Pet. for Cert, in No. 85-955, pp. 104A-105A. Japan fulfilled this portion of the agreement on December 11, 1984. Id., at 110A, 112A-114A. Second, the two nations agreed that if Japan would end all commercial whaling by April 1,1988, Japanese whalers could take additional whales in the interim without triggering certification. Japan agreed to harvest no more than 200 sperm whales in each of the 1986 and 1987 coastal seasons. In addition, it would restrict its harvest of other whale species — under limits acceptable to the United States after consultation with Japan — through the end of the 1986-1987 pelagic season and the end of the 1987 coastal season. The agreement called for Japan to announce its commitment to terminate commercial whaling operations by withdrawing its objection to the 1982 IWC moratorium on or before April 1, 1985, effective April 1, 1988. Id, at 105A-106A. The original plaintiffs to this action are: American Cetacean Society, Animal Protection Institute of America, Animal Welfare Institute, Center for Environmental Education, The Fund for Animals, Greenpeace U. S. A., The Humane Society of the United States, International Fund for Animal Welfare, The Whale Center, Connecticut Cetacean Society, Defenders of Wildlife, Friends of the Earth, and Thomas Garrett, former United States Representative to the IWC. In addition, plaintiffs also requested (1) a declaratory judgment that the Secretary’s failure to certify violated both the Pelly and Packwood Amendments, because any whaling activities in excess of IWC quotas necessarily “diminishes the effectiveness” of the ICRW; and (2) a permanent injunction prohibiting any executive agreement which would violate the certification and sanction requirements of the Amendments. 604 F. Supp. 1398, 1401 (DC 1985). The Japan Whaling Association and Japan Fishing Association (Japanese petitioners), trade groups representing private Japanese interests, were allowed to intervene. We also reject the Secretary’s suggestion that no private cause of action is available to respondents. Respondents brought suit against the Secretary of Commerce, the head of a federal agency, and the suit, in essence, is one to “compel agency action unlawfully withheld,” 5 U. S. C. § 706(1), or alternatively, to “hold unlawful and set aside agency action... found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 706(2)(A). The “right of action” in such cases is expressly created by the Administrative Procedure Act (APA), which states that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,” § 704, at the behest of “[a] person... adversely affected or aggrieved by agency action.” § 702 (1982 ed., Supp. III). A separate indication of congressional intent to make agency action reviewable under the APA is not necessary; instead, the rule is that the cause of action for review of such action is available absent some clear and convincing evidence of legislative intention to preclude review. See, e. g., Block v. Community Nutrition Institute, 467 U. S. 340, 345 (1984); Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 410 (1971); Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). It is clear that respondents may avail themselves of the right of action created by the APA. First, the Secretary’s actions constitute the actions of an agency. See 5 U. S. C. § 551(1); Citizens to Preserve Overton Park v. Volpe, supra, at 410. In addition, there has been “final agency action,” in that the Secretary formally has agreed with the Japanese that there will be no certification, and this appears to be an action “for which there is no other adequate remedy in a court,” as the issue whether the Secretary’s failure to certify was lawful will not otherwise arise in litigation. Next, it appears that respondents are sufficiently “aggrieved” by the agency’s action: under our decisions in Sierra Club v. Morton, 405 U. S. 727 (1972), and United States v. SCRAP, 412 U. S. 669 (1973), they undoubtedly have alleged a sufficient “injury in fact” in that the whale watching and studying of their members will be adversely affected by continued whale harvesting, and this type of injury is within the “zone of interests” protected by the Pelly and Packwood Amendments. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). Finally, the Secretary has failed to point to any expressed intention on the part of Congress to foreclose APA review of actions under either Amendment. We find, therefore, that respondents are entitled to pursue their claims under the right of action created by the APA. The Court of Appeals relied upon the statement in S. Rep. No. 92-582 that the purpose of the Amendment was “ ‘to prohibit the importation of fishery products from nations that do not conduct their fishing operations in a manner that is consistent with international conservation programs. It would accomplish this by providing that whenever the Secretary of Commerce determines that a country’s nationals are fishing in such a manner, he must certify such fact to the President.’” 247 U. S. App. D. C. 309, 319, 768 F. 2d 426, 436 (1985) (emphasis omitted), quoting S. Rep. No. 92-582, at 2. This is indeed an explicit statement of purpose, but this is not the operative language in the statute chosen to effect that purpose. The seetion-by-section analysis contained in the same Report recites that the operative section directs the Secretary of Commerce to certify to the President the fact that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international conservation program whenever he determines the existence of such operations. Id., at 5. These are not the words of a ministerial duty, but the imposition of duty to make an informed judgment. Even respondents do not contend that every merely negligent or unintentional violation must be certified. It should be noted that the statement of purpose contained in the House Report tracks the language of the operative provisions of the Amendment. H. R. Rep. No. 92-468, p. 2 (1971). Representative Pelly testified at the Senate hearings that the sanctions authorized by the Amendment were to be applied “in the case of flagrant violation of any international 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_stateclaim	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 dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. N. H. ROANE, individually and as spokesman for Johnson & Roane, a joint venture, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation, Appellee. No. 8419. United States Court of Appeals Tenth Circuit. May 8, 1967. Donald Church, Tulsa, Okl., for appellant. David H. Sanders, Tulsa, Okl. (Sanders, McElroy & Whitten, Tülsa, Okl., of counsel, on the brief) for appellee. Before LEWIS, BREITEN STEIN, and HICKEY, Circuit Judges. BREITENSTEIN, Circuit Judge. In this Miller Act proceeding, appellant Roane attacks a judgment entered against him on the cross-claim of the appellee surety company. Johnson, who was a party below but is not a party here, and Roane, were joint venturers. In that capacity they made a contract with, the United States for work on the Keystone Dam project in Oklahoma. The appellee surety executed the performance and payment bonds required by the statute. Defaults occurred and several Miller Act cases were brought and consolidated. These resulted in summary judgments for the use plaintiffs and against the joint venturers and their surety in the amount of $42,-418. The surety paid the judgments, and by cross-claim asserted the right to recover this amount plus additional sums for taxes, insurance premiums, and expenses from the joint venturers. It obtained a judgment for $62,112 against appellant Roane and co-venturer Johnson. We are concerned with the validity of that judgment so far as it affects Roane. Summary judgments were entered for the use plaintiffs. Although these will have to be considered in some detail, matters of general application should be dealt with at the threshold. Appellant says that, in part, the summary judgments are improper because of the existence of genuine issues of material facts. Our examination of.the record discloses that the only pertinent issues are between the allegations in the appellant’s pleadings and the affidavits submitted in support of the motions for summary judgments. A typical example of this is the appellant’s claim that certain of the items for which the use plaintiffs were awarded recovery had as their basis work done by Johnson on a venture of his own under a contract with an agency of the State of Oklahoma. The appellant’s contentions run afoul of Rule 56(e), F.R.Civ.P., which, as amended in 1963, provides that in opposition to a motion for summary judgment an adverse party “may not rest upon the mere allegations or denials of his pleading” but must by affidavit or otherwise “set forth specific facts showing that there is a genuine issue for trial.” Neither the pleadings nor the statements made in brief and argument create a fact issue when opposed to positive contrary statements which were made in affidavits submitted in support of the motions for summary .judgments. The affiants. swore that the items were supplied at the request of Johnson for the Keystone project. Appellant made no response as required by the rule to create a fact issue. In regard to certain of the claims, appellant says that the notice made necessary by 40 U.S.C. § 270b was not given. In each instance an adequate showing was made that the labor or materials were ordered by Johnson for the Keystone project. The notice is required when the claimant has no contractual relationship with the prime contractor. A Miller Act supplier who deals directly with a prime contractor does not have to give the notice. Here the dealings were directly with one of the joint venturers who held the prime contract. The first Miller Act suit was brought by Butler-Sparks Equipment Company. Thereafter separate suits were brought by Sinclair Refining Co., Boecking-Berry Equipment Co., and Albert & Harlow, Inc. Appellant says that only one suit can be brought and, hence, the district court was without jurisdiction over the three later suits. Although this might have been the law under the Heard Act, it is no longer. The Heard Act has been superseded by the Miller Act which specifically provides that every person furnishing labor and materials has the right to sue on the payment bond. Nothing therein limits to one the number of suits on such bond. The court had jurisdiction of the three mentioned suits and properly consolidated them with the Butler-Sparks case. On the Butler-Sparks claims, appellant says that the labor, parts, and materials were furnished at the instance of the owner of rented equipment and concludes that the joint venture is not responsible. An uncontroverted affidavit shows that the labor and materials were furnished at the request of Johnson for the Keystone project. The claim of Communications Engineering Company covers the installation, rental and maintenance of two mobile radio units. Appellant says that these were capital equipment not consumed in the prosecution of the work and not a proper charge against the bond. A rental charge for equipment used in a public work project within the purview of the Miller Act is not a capital expense. The affidavit supporting the claim is sufficient. Pate and Morris Construction Company furnished to the project two tractors with operators and presented a claim for the rental and the operators’ wages. The argument that these wages are not a proper charge is farfetched. The showing is that the operators worked on the project at the instance of the joint venture. Liability may not be avoided on the ground that Pate and Morris actually paid them. The claim of Conley-Lott-Nichols Machinery Company is for rental and repairs on two crawler tractors under contracts between Johnson and Nichols Machinery Company. An adequate showing is made that Conley-Lott-Nichols succeeded to the interest of Nichols and that the claim was in accordance with the rental contracts. The objection of the appellant is that at the time of the execution of the rental contracts the parties also entered into option-to-purchase agreements. He relies on United Pacific Insurance Company v. United States ex rel. Mississippi Val. Equipment Co., 8 Cir., 296 F.2d 160, which reversed a summary judgment granted to a lessor under a rental agreement which contained an option to purchase. The court there said that “the measure of the surety’s liability is the actual rent to be paid on the equipment used on the job” and that “the agreed rentals as recited in the agreement were disproportionately high and did not represent a fair and actual rent because such so-called rentals would have exceeded the agreed value of the equipment in less than one year.” Id. at 164. The facts here are different. Substantial amounts remained to be paid on the purchase price at the end of the lease period. In addition, the affidavit of an official of the lessor states that: “The monthly rentals provided for in such Lease Agreements were the usual, customary and prevailing rentals for similar equipment in the States of Oklahoma and Texas at the time such rental agreements were executed.” Appellant made no effort to contravene this statement. In our opinion, the United Pacific decision does not apply and the entry of summary judgment in favor of Conley-Lott-Nichols was proper. We conclude that all the summary judgments in favor of the use plaintiffs were valid. The surety paid them and under its indemnity agreement could recoup from appellant and Johnson. The fact that those two had their own agreement which divided the work and liability between them makes no difference so far as the rights of the surety are concerned. Appellant admits that he and Johnson as joint venturers made the prime contract with the United States and obtained the bonds from the surety. In Oklahoma, the law of partnership applies to controversies between joint venturers and third persons,7 and the property of any member of the joint venture is liable to satisfy a judgment against the venture. No claim is made that, at the time of the execution of the bonds, the surety had notice of the private arrangements between appellant and Johnson. In the absence of notice it is not bound thereby. No question is raised over the validity and effect of the indemnity agreement. The surety may recover from Roane the amounts paid to satisfy the judgments for the use plaintiffs. Additional recovery for taxes, insurance premiums, and expenses was proper. Substantial and uncontroverted evidence sustains the findings of the trial court that the amounts allowed were due from the joint venture and unpaid. Counsel for appellant suggests in brief and argument that property of Johnson is available for at least partial satisfaction of the judgment for the surety and that appellant and the surety are engaged in litigation in the Oklahoma state courts over rights to such property. All of this is beside the point. We are concerned with the liability of appellant — not with the amount of money he may ultimately have to pay without recoupment from Johnson. The controversy which appellant and the surety are having in state court is no concern of ours and furnishes no reason for overthrowing the judgment which has been entered. Affirmed. . 40 U.S.C. § 270a et seq. . This principle was recognized in this circuit before the amendment. See McCollar v. Euler, 10 Cir., 286 F.2d 327, 328, and General Beverages, Inc., v. Rogers, 10 Cir., 216 F.2d 413, 414. . Continental Casualty Company v. United States, 8 Cir., 305 F.2d 794, 797, cert. denied sub nom. United States for Use and Benefit of Robertson Lumber Co. v. Continental Casualty Co., 371 U.S. 922, 83 S.Ct. 290, 9 L.Ed.2d 231. . Act of August 13, 1894, ch. 280, 28 Stat. 278, as amended by the Act of February 24, 1905, ch. 778, 33 Stat. 811. . 40 U.S.O. § 270b(a). . See United States for Use and Benefit of J. P. Byrne & Co. v. Fire Association of Philadelphia, 2 Cir., 260 F.2d 541, 544. . Commercial Lumber Co. v. Nelson, 181 Okl. 122, 72 P.2d 829, 830. . 54 O.S.A. § 40, 1966. See also Adam-son v. Brady, 199 Okl. 55, 182 P.2d 748, 750; and W. B. Johnston Grain Company v. Self, (Okl.) 344 P.2d 653, 658. Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_record	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 fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision. 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, Plaintiff-Appellee, v. Robert R. CARRA, Defendant-Appellant. No. 78-1363. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 15, 1979. Decided Aug. 3, 1979. Rehearing Denied Sept. 10, 1979. Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant. Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M. (with R. E. Thompson, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee. Before HOLLOWAY, McKAY and LOGAN, Circuit Judges. McKAY, Circuit Judge. Defendant appeals his conviction on three counts of receipt of firearms by a felon and one count of making false statements in the acquisition of a firearm. He complains that the following prejudicial errors justify reversal: 1. The court failed to suppress certain evidence which was the fruit of an illegal warrantless search; 2. A second search was based on a warrant which was improperly executed and returned; 3. Certain inculpatory statements were admitted into evidence which were involuntarily made; 4. The United States Attorney was illegally vested with discretion to charge defendant with different penalties under different statutes for the same illegal conduct. THE SEARCH Defendant leased a fairly remote rural homesite in New Mexico. In the fenced garden area behind the house grew several vegetable crops, including marijuana. On August 29, 1977, a New Mexico narcotics agent approached this fenced area and seized a marijuana leaf. A warrant was then procured to support a mo.re extensive search. It was this subsequent search which uncovered the firearms related to the prosecution in question here. The initial search is relevant because evidence relating to firearms constituted a derivative fruit of that search. The dispute turns entirely on whether there was sufficient evidence at the suppression hearing to show that neither the officer nor the marijuana leaf were within the curtilage of defendant’s home. While the defendant’s contrary evidence on this point was considerably more extensive than the government’s, the government’s evidence was nonetheless sufficient to support the trial court’s determination that there had been no illegal invasion of the curtilage of defendant’s premises. At the suppression hearing, the agent who seized the marijuana testified as follows: Q Mr. Kiper, did there come a time when you received information concerning growing of a substantial marijuana crop on land that later devel- . oped, was occupied or leased or rented by a man named Robert R. Carra? A This is correct. Q How did you receive the information, sir? Let me put it this way: Did there come a time when you entered upon certain fields and actually took into physical custody a certain amount of plant material? A That’s correct. Q And can you describe exactly how you went about getting that plant material, Agent Kiper? If you feel better in drawing a chart, you certainly may be free to do so. A After entering the property that was subleased by a doctor in Portales by the name of Buck Wilson,— Q Did you have Dr. Wilson’s permission to do this, sir? A Yes, and I was with him at the time. Q Very well, sir. Go ahead. A He took me onto the place that he had subleased. I walked to the back of the residence on his subleased property and obtained a leaflet of marijuana, which I recognized to be marijuana. I then departed that area. This leaflet was later turned over to, at that time, Sergeant Ron Walker of the Portales Police Department. He, in turn, obtained a search warrant for that area, while I maintained a surveillance by foot of that general area. Q So the area in which you were when you picked up the marijuana leaf was in the area where 'this garden was, is that correct? A That’s correct. Q And there was a fence around the garden, isn’t there? A Yes. Q Did you reach your hand through the fence or over the fence? A Not— Q Marijuana was growing through the fence, is that what you’re saying? A That’s correct. Q But you were standing next to the fence, weren’t you? A I was. Q That’s the fence around this garden here. A That’s the picture of this thing, ma’am, that’s correct. Record, vol. 2, at 65-66, 81. This was sufficient evidence to support a trial court conclusion that Wilson, not the defendant, had subleased the premises where the officer stood when he picked the leaf. It also supports a conclusion that the leaf was protruding through the fence, beyond the cur-tilage, when it was seized. The trial court’s refusal to suppress the evidence which flowed from this incident was not error. EXECUTION AND RETURN OF WARRANT Appellant attacks the form but not the substance of the federal search warrant as not complying with Rule 41(c) of the Federal Rules of Criminal Procedure. The attack is two pronged: (1) that the application was made by a person not authorized by Rule 41 and, (2) that the warrant as issued directed return to the issuing judicial officer rather than a federal magistrate. The record reveals that the warrant was issued by a state court judge based on the sworn statement of a state police officer. But the record also shows that the warrant was processed under the supervision and at the instance of a federal officer. This adequately satisfied the requirement that it be “issued upon . . . request of á federal law enforcement officer.” See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (hypertechnical approach to search warrants inappropriate). It is true that the issued warrant specified that it should be returned to “me” —the state court judge. The return instruction was printed on the standard warrant form employed by the judge. Had the judge stricken the word “me” and inserted “a federal magistrate,” the strictures of Rule 41(c)(1) would have been fully complied with. Nonetheless, in light of the fact that the warrant actually was returned to a federal magistrate, we are unwilling to reverse on this issue. Other arguments relating to the execution of the warrant are asserted for the first time on appeal and do not raise issues which would rise to the level of fundamental error. VOLUNTARINESS OF STATEMENTS To the extent defendant claims that certain inculpatory statements were the fruit of an illegal search, that matter we have already resolved against him by upholding the search. However, defendant also claims that he was compelled to incriminate himself by coercive police conduct. Although defendant signed a statement acknowledging the “voluntary” nature of his statements, he now is understood to assert that the acknowledgment itself arose out of coercive conditions. Voluntary waiver of the right to remain silent is not mechanically to be determined but is to be determined from the totality of the circumstances as a matter of fact. See North Carolina v. Butler,—U.S.—, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). While there was considerable force used in connection' with effecting defendant’s arrest, the government’s testimony — which was apparently believed by the trial court — indicates that it was provoked by the defendant and was reasonable under the circumstances. The evidence shows that defendant was properly informed of his rights and that his statements were sufficiently removed in time from the occasion of his forcible arrest and were given under such circumstances that the trial court had a reasonable basis for concluding that they were voluntarily made. ILLEGAL VESTING OF DISCRETION Defendant’s final argument is that the statutory scheme which permits the prosecutor to determine whether to prosecute the same conduct under either 18 U.S.C. § 922(h) or 18 U.S.C. App. § 1202(a), the latter of which has a lesser penalty, is unconstitutional. The matter has been expressly determined against defendant by the Supreme Court in United States v. Batchelder,—U.S.—, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). AFFIRMED. . 18 U.S.C. §§ 922(h)(1), 924(a) (1976). . 18 U.S.C. §§ 922(a)(6), 924(a) (1976). . It was claimed that the government had stipulated that the defendant was the lessee of the land on which the officer stood; but the record does not bear out defendant’s argument on this point. The government had stipulated that if a particular witness were to testify he would testify to having rented the land in question to defendant. The stipulation did not concede that defendant leased the land. Record, vol. 2, at 25. . In relevant part, Rule 41 provides: . A search warrant authorized by this rule may be issued by a federal magistrate or a judge of a state court of record within the district wherein the property sought is located, upon request of a federal law enforcement officer or an attorney for the government. Question: Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_1_3	H	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. WESTERN UNION TELEGRAPH CO. v. WILCOX et al. No. 10555. Circuit Court of Appeals, Eighth Circuit. Aug. 7, 1936. Ralph T. Finley and Lon O. Hocker, both of St. Louis, Mo. (James C. Jones and Frank H. Sullivan, both of St. Louis, Mo., Francis R. Stark and Robert C. Barnett, both of New York City, and Jones, Hocker, Gladney & Jones and Sullivan, Reeder & Finley, all of St. Louis, Mo., on the brief), for appellant. James L. HornBostel, of Jefferson City,. Mo. (Roy McKittrick, of Jefferson City, Mo., on the brief), for appellees. Before STONE, WOODROUGH, and THOMAS, Circuit Judges. WOODROUGH, Circuit Judge. The Western Union Telegraph Company brought this suit in equity against members and the secretary of the Missouri state tax commission and the state auditor to enjoin the certification to the various counties in the state for taxation purposes of an alleged excessive and discriminatory assessment of the company’s property as of June 1, 1932. Injunction was denied after trial of the issues in the District Court, and the company has appealed. Diversity of citizenship and jurisdictional amount in controversy were shown; also want of adequate remedy at law; and no question is presented here as to the form of the suit or the sufficiency of the petition. It appears that under the laws of Missouri the state tax commission is charged with the duty of originally assessing for taxation the property of telegraph companies such as the plaintiff on the basis of its true value in money in the same proportion as other property is assessed; said assessment being subject to equalization by the state board of equalization. The telegraph company pleaded that, although the true value of its property within the state did not exceed the sum of $4,300,000, the tax commission, at first tentatively and then, after a hearing and the introduction of evidence, finally assessed its property in Missouri in the sum of $6,556,192, which assessment the state board of equalization, after hearing, refused to reduce. Plaintiff alleged further: “That in valuing the plaintiff’s property and equalizing said assessment, said Tax Commission and Board of Equalization, under the law and in accordance with the settled practice and custom of said Commission and Board, were required to determine the value of plaintiff’s property in the State of Missouri by taking such percentage of the total value of the plaintiff’s property within and without the State of Missouri as the total mileage of the plaintiff’s poles and wires in the State of Missouri bore to the total mileage of the plaintiff’s poles and wires within and without the State of Missouri”; that, “Within the time required by the laws of the State of Missouri, the plaintiff filed * * * a statement, duly subscribed and sworn to, * * * which statement set out the kind of property composing plaintiff’s telegraph system in the State of Missouri * * * and also the number of miles of poles and miles of iron and copper wire in said State * * * ”; “that from the statements filed by the plaintiff, aforesaid, and evidence offered before said Tax Commission, said Commission had before it the facts showing the total property owned by the plaintiff within and without the State of Missouri, including the total mileage of poles and wires within and without the State of Missouri, and the total cost thereof, the average cost per mile of various kinds of property, such cost less depreciation, together with earnings of the plaintiff’s property prior to such assessment, as well as the market value of its outstanding stock and bonds, over a reasonable period of years prior to such assessment”; “that in making and approving the said assessment of $6,556,192.00, the said (Tax) Commission and- Board of Equalization deliberately, intentionally and arbitrarily grossly overassessed the plaintiff’s said property to the extent that the said assessed value was fixed in excess of $4,300,000.00, by deliberately, intentionally and arbitrarily basing said assessed value upon a cost basis alone, in total disregard of the earning power of plaintiff’s said property and the true value in money of its said property; that the valuation of plaintiff’s said property fixed by said Commission and approved by said Board of Equalization is not supported in any manner by any representative method or basis of valuation; that to arrive at any value of said property in excess of $4,300,000.00, said State Tax Commission could only have gróssly overassessed the plaintiff’s property in Missouri or considered valuations of plaintiff’s property outside of the State of Missouri, not legally forming a part of plaintiff’s property within said State; that in so valuing the plaintiff’s property, and in basing its valuation upon cost alone, and disregarding the earning power and the market value or true value in money of plaintiff’s said property, the said Commission and Board of Equalization proceeded upon a fundamentally wrong theory of valuation, for all of which said reasons the amount of such valuation in excess of $4,300,000.00 constitutes a fraud against this plaintiff, and deprives and will deprive the plaintiff of its property without due process of law,” “and denies to the plaintiff the equal protection of the laws.” The plaintiff further alleged “that while intentionally, deliberately and arbitrarily assessing the plaintiff’s property, as aforesaid, as of June 1, 1932, for the taxes for the year 1933, grossly in excess of its true value, as aforesaid, and upon such fundamentally erroneous basis of valuation, the said State Tax Commission and State Board of Equalization deliberately, intentionally and arbitrarily fixed, approved and equalized the assessment of all other property in the State of Missouri, for the same year, in the same class for the purpose of taxation, at not to exceed eighty per cent, of its true value in money; that such action by said taxing authorities was and is a discrimination against, and a fraud upon, the plaintiff * * * ” And more particularly it was alleged that real estate and personal property were underassessed at 65 per cent, of true value and that flat reductions were made in the assessment of real and personal property, especially upon flat rates of value for livestock on account of the financial depression since 1929, and that all such underassessment has been so open and notorious that the same has developed into a well-established practice and custom of underassessment. These claims were put in issue by the answer of the defendants, and on the trial of the case-a member of the state tax commission, Mr. A. J. Murphy, who had participated in making the assessment complained of, testified as a witness for the defendants, and narrated in detail how the assessment was arrived at and made by the board. The contentions argued in this court can be more readily introduced by a consideration of Mr. Murphy’s account of the making of the assessment. Mr. Murphy said that the sworn return of their properties to the tax commission was supposed to be filed by the public utilities before the end of the year (in this case 1932), and the board passes on it in the spring of the following year or sometime in the summer. In its return for the tax year in question the company omitted to report certain properties amounting to around $800,000 which it had always included in the reports in previous years,' and it also claimed greatly reduced values, so that upon the face of its return its assessment would be much less than it had been. Accordingly, a study was made by Mr. Murphy, not only of the returns made by the company to the tax authorities in Missouri, but of its reports to the Interstate Commerce Commission, the. Missouri Public Service Commission, and to stockholders. Mr. Murphy prepared tables showing what the assessments of the Western Union property had been in the state of Missouri over a number of years. The assessments from 1921 to 1931 were as follows: 1921 $5,470,540.00 1922 5.724.447.00 1923 5.499.156.00 1924 5.865.121.00 1925 5.851.999.00 1926 5.840.633.00 1927 5.853.930.00 1928 5.918.248.00 1929 5.893.139.00 1930 5.955.751.00 1931 5.955.653.00 It appeared that in a period between 1926 and 1931 the property of the company, as assessed in Missouri, had only been increased $115,000, whereas the reports of the company filed with the Public Service Commission of Missouri showed that in the five-year period from 3928 to 1932 the increase of the company’s book value of plant and equipment was $69,161,168. There was nothing in the reports made by the company to the taxing authorities of Missouri from year to year showing increased valuations except that some increase of mileage of wires and poles was indicated. Examination of the returns made by the telegraph company to the taxing authorities in Missouri disclosed that the company did not report the number of miles of wire owned or operated by it in the state of Missouri or in the United States, so that, although Mr. Murphy deemed the pole and wire mileage comparison proper for state allocation purposes, no such allocation could be made from the returns made to the Missouri taxing authorities. Mr. Murphy said: “We were trying to arrive at a correct value of the properties using * * * whatever information we could get. * * * We had copies of their annual reports to the stockholders and in reading these reports we discovered that in this ten years in which we had not been increasing their assessment in Missouri they say their property has increased' 83 per cent. They did not say what kind of property hut we had information enough to know it was' similar property to that in Missouri, poles and wires and telegraphic instruments.” The company’s reports showed that “the new construction for the six years (1928-1932) * * * added to plant and equipment were: Poles $26,802,109.00; wires, $13,-548,031.00; aerial cable, $2,751,825.00; underground cable, $4,486,269.00; conduit $3,948,976.00; pneumatic tubes $1,677,804.-00; telegraphic equipment, $21,340,090.00; total additions to assets $113,232,321.00.” “We were trying to make up our minds whether this property (the telegraph company’s) should be worth more, * * * we examined their annual report and find that the company’s annual report for the fiscal year 1931 says ‘the company’s property has been expanded and intensively developed to keep pace with the growing demand for better and faster telegraph service. Additions and betterments to the plant during the twenty years ending 1931 aggregated $193,335,000.00.’” It also appeared in the reports to stockholders for 1931 that the taxes of the company throughout the United States generally were double those of ten years ago, whereas the property account had increased only 83 per cent. With this and other information in hand, Mr. Murphy prepared tables of computations of the company’s property values and pole and wire mileages to arrive at a valuation for the assessment. He testified that in reaching the valuation upon which the assessment was made the commission did not'adopt the reproduction cost new less depreciation basis nor any other one theory. In response to the question propounded by the court to Mr. Murphy: “How did you arrive at your assessment?” Mr. Murphy said: “We arrived at that originally by the first method that I talked to you about, the reproduction cost new, comparing that with the earning statement at that time as we knew it and the sale of their securities as we knew it at that time. That was a fair average of the three methods there. The average on plans 1, 4, and 5, that is the reproduction cost new, total net income and sale of securities, which we think are the fa-ir methods. The average of those three is $6,897,350.00.” (The assessment being $6,556,192.) Although Mr. Murphy did not testify that he was an accountant, his testimony reflects that he was competent to and did make comprehensive studies of the company’s properties from the sources referred to by him. On the trial Mr. Murphy submitted tables which contained the figures in detail to reflect computations made according to each method employed to arrive at the value of the company’s property in Missouri. The tables so presented on the trial were not those originally compiled by the commission prior to the assessment. Mr. Murphy says: “We made tables in the light of more recent information which we” are submitting. “After this suit came up we had to make further investigation, that is the company did. The company revised their estimates. Every time they revised their figures we would have to revise ours; we would get some additional information.” The tables of computations, submitted by Mr. Murphy and received in evidence, show the valuation of the plaintiff’s property of June 1, 1932, by five different methods, summarized as follows: (1) Reproduction Cost New Less 15% depreciation Plus 8% Going Value $7,-997,761 — $1,999,664 equals $6,792,007 plus $543,360 equals $7,335,367 (2) Prorated Book or Cast Value $9,930,871 —15% Dep. $1,489,620 equals $8,441,-241 plus 8% equals 9,116,540 (3) Plant Capitalizing Earnings over a 5-year term at 6% return equals 5,917,607 (4) Capitalizing Total Net Income at 7% 1928-1929-1930 and 6% 1931-1932 6,473,571 (5) Sale of Securities equals 6,883,113 Average of all 5 valuations $7,145,239 Assessment 6,555,690 Average of 1-4-5 6,897,350 Valuation on Cost of property! less Depreciation plus going value which is valuation used in the ^Equals 9,116,540 assessment of land, Town lota, and most property J Assessment $6,555,690 72% Voluminous testimony offered for the company was to the effect that the computations as made for the Board upon each of the several identified methods of estimating values were erroneous, that the conclusions arrived at were wrong, and that the true value of the company’s property in Missouri was only a fraction of the assessment. On the issue of discrimination Mr. Murphy testified that the practice of the tax commission was to “make a map showing each county in the state and we put down in red ink on this map (over each county) the last previous assessment confirmed by the State Board of Equalization which, in this case is 1932, which was the assessment for 1931. Then we put a second figure in black ink, the average assessment per acre of farm land returned from each county. * * * After this map has been completed and other assessments arrived at rby the County Assessor and certified to by the Tax Commission, the Tax Commission reviews these assessments, compares the assessments with the previous year and gets these maps for probably two or three years back and sees what the general tendency in each county has been, whether it is up or down. We compare the assessment in each county (with the assessment) on lands of the surrounding counties and if we find a discrepancy or if our other information leads us to believe that any of the figures returned by the assessors are too high or too low, we increase it or decrease it and make this third set of figures which is the valuation arrived at by the Tax Commission. Then, wp certify these up to the State Board of Equalization who make an additional finding and their finding is the fourth figure on these maps which is the final assessment for the state.” In answer to the question: “Mr. Murphy, I will ask if the Tax Commission intentionally assessed the property of the plaintiff at more than its true value and other.property in the state at less than 100% of its true value in money?” Mr. Murphy answered: “No.” The plaintiff called some fifty-odd witnesses who gave testimony tending to show that real and personal property in the state was assessed below its true value and that there had been flat reductions in the assessments upon certain classes of personal property, notably, livestock and bank stock. Many witnesses called for the defendants gave testimony tending to show that property values in Missouri had gone down much faster than taxing officers had reduced assessments, so that in the tax year in question assessed values tended to approximate closely to real values in money. Neither of the parties made any request to the court to find specially upon any of the very numerous fact disputes developed in the large volume of testimony, and the court accordingly declared briefly and generally that it could not be found as a fact that the fair value of the plaintiff’s property as of June 1, 1932, was less than the amount at which it was assessed; nor that there was any intentional, deliberate, or arbitrary overassessment of plaintiff’s property; nor that the assessment of other property in Missouri “was not at the true value in money of that property”; and the court found “that there was no intentional deliberate nor arbitrary discrimination against the plaintiff by assessing its property at a different or higher percentage of its true value in money than the percentage of value at which other property in Missouri was assessed in 1932.” The court, accordingly, dismissed the bill. On this appeal the contentions of the appellant relate, first, to its claim that its property was overassessed, and, second, to the claim of discrimination on account of the alleged failure to equalize the plaintiff’s assessment on the same basis of valuation as the great mass of other property in the state. Overassessment. As to the overassessment of the property, it has been argued for appellant that the assessment here assailed was not arrived at by the tax commission upon consideration of computations made in accordance with the several theories of valuation testified to by Mr. Murphy, but that it was, in fact, made arbitrarily by wrongfully including certain locally assessable properties and other property outside the state at grossly excessive prices and then resorting to computations merely to check or justify what had been wrongfully done. It is claimed that a so-called “work sheet” produced from the files of the commission (Exhibit, 17-A) and the testimony concerning the same would so indicate. The exhibit referred to includes an item “Other Equipment, $1,498,764,” and it is argued that the property referred to in this item was in part property that was outside of the state and that another part, amounting to at least $1,000,000, was inside of the state but locally assessable and not subject to assessment by the tax commission. On stridy of the testimony relative to this controversy, we have concluded that it was not established that the identified work sheet was intended to or did set forth the elements upon which the assessment was based by the tax commission. We have concluded that we should give credence to Mr. Murphy’s statement that the assessment was reached originally by the commission upon consideration of the several methods of computation and the combination thereof as described by him. The appellant has also presented that the commission followed fundamentally erroneous methods to compute the value of plaintiff’s property as argued in the following contentions, which we will number, epitomize, and discuss: 1. That in its valuation upon the reproduction cost new basis the commission wrongfully included an arbitrary item of 8 per cent, for franchise or going value, amounting to $300,000. 2. That the commission included personal property to the extent of at least $1,-000,000, which was assessable by the assessors in the local subdivisions of the state and not by the state tax commission. 3. That the commission based its valuation upon book values without adequate allowance for depreciation and without due consideration of actual values, wrongfully taking (in part at least) an average value over a period of years. 4. That in its valuation by capitalization of earnings, (a) a five-year average was wrongfully taken; (b) expenses of rent on lease lines were not deducted; (c) the commission capitalized earnings on the basis of 6 per cent, instead of 7 or 8 per cent. 5. In its valuation on the sale of’ securities basis of computation the commission (a) wrongfully used a five-year average of sales values; (b) it wrongfully added stocks and bonds which plaintiff had purchased amounting to about $1,765,550; noninterest-bearing liabilities, about $13,-000,000; premiums on stocks, about $1,-163,350; and bonds owned by plaintiff and deposited as collateral for loans, $3,143,000. 1. Going Value. In estimating the value of the company’s property upon the basis of reproduction cost new less depreciation, the Board, after, deducting 15 per cent, depreciation from the' gross valuation, added to the depreciated figure an amount equal to 8 per cent, thereof as going value. Later, when the tables showing the five different methods of estimating values had been compiled, the' same addition of 8 per cent, upon the depreciated valuation was made by Mr. Murphy in reaching his valuation by his so-called prorated book or cost value. Mr. Murphy said: “In some of these computations there is an 8 per cent, going value as a part of the real value of the property. It was added, however, after taking off depreciation.” “The theory of going value is this: that in a property of this kind, spread out over the United States, that it would take at least five years to build, that you would incur three or four years taxes, interest, and everything on your securities before you get to earning a cent. You are attempting to establish the value of it at the present time. * * * So I think that is a proper element to be taxed. We assess similar values on every utility in the state. * * * Always have.” The reasons upon which it has been found necessary in estimating the value of properties like the plaintiff’s to make an addition on account of going value have been explained and upheld by the courts in numerous cases (see Los Angeles Gas & Electric Corp. v. Railroad Comm., 289 U.S. 287, 313-319, 53 S.Ct. 637, 77 L.Ed. 1180); and we do not find fundamental error, illegality, or fraud in the addition made under the item “Going Value.” Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 139, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 109-111, 55 S.Ct. 55, 79 L.Ed. 222; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 28, 52 S.Ct. 48, 76 L.Ed. 146; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245, 52 S.Ct. 133, 76 L.Ed. 265; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340, 28 A.L. R. 979. 2. Property Claimed to be Locally Assessable. Two assignments of error and considerable portions of appellant’s brief and reply brief relate to its second contention above stated to the effect that certain property included by the Commission was locally assessable property. There is no competent evidence to establish that the property referred to in this contention ever was actually assessed by local assessors in the state or that there was a double assessment thereof by local and state assessing officers. Mr. Meigs, testifying for the telegraph company, says that “he had been told that the elements of value enumerated” had been locally assessed and that “he had been told that the reason for not including them in the returns of the company for the year in controversy was that he had been so told by Mr. Whitney, now deceased, who was tax attorney.” Whether any of the company’s property was in fact being doubly assessed, once by local assessors in the counties and again by the state tax commission, was a matter very easy of ascertainment and demonstration by the company. The Missouri statute (section 9764, R.S.Mo.1929 [Mo.St.Ann. § 9764, p. 7880]) requires the company to make a sworn return to local assessors of any of its property which is locally assessable, and no such local returns are shown. Mr. Murphy testified: “I want to say further that there is a blank sent to them (the telegraph company) to make a return of their property in each county in the state and each taxing subdivision. They reported nothing on those blanks, except the number of miles of wire and number of miles of poles. They did not give us a list of any other property in those counties or taxing subdivisions.” Neither did the company plead that the tax commission had committed the wrong now complained of. Its pleading was, as stated, that the tax commission had arrived at its excessive assessment by other means specifically set out, not including double assessment by local officers and by state officers. The pleading referred to is the amended petition which the plaintiff was permitted to file after all of the testimony had been taken on the trial. Nor does the record disclose that this contention now seriously urged upon us was presented to the trial court. Undoubtedly the great bulk of locally assessable property belonging to the telegraph company in Missouri is in St. Louis, where it has valuable land and buildings and equipment. Mr. Murphy was very positive that those were not included in his calculations. He testified: “In making these computations I did not count in the buildings and land. * * * I eliminated those * * * they were deducted as noil-distributable property. What we recognize as and what the law recognizes as non-distributable property is lands, buildings. * * We did not include these in this calculation.” lie said that he had only included “distributable property” in his calculations and that such property was properly assessable by the state tax commission rather than by the local assessors. Because it has been urged upon us with earnestness we have given this contention of the appellant careful consideration, but we conclude that it should not be sustained. 3. Book Values — Depreciation. The appellant pleaded and has contended upon elaborate analyses of all relevant computations and figures that the commission gave undue weight to book' values. Its argument establishes that in the depression tax year in question book values were not an accurate criterion of true value, and undoubtedly, if it could be proven that the assessment was merely the book value in that year, that would present “a fundamentally wrong theory” of valuation. At the opening of the trial counsel for the telegraph company said: “There is no dispute about the reconstruction costs new in any value of the physical plant. There is no contest but that that is correct.” There were disputes as to what items should be properly included. The company submitted four different reports of its reproduction cost new as of June, 1932. Report No. 1 was submitted in 1932 and withdrawn because of errors. Report No. 2 was submitted in January, 1933. Report No. 3 was submitted in depositions taken by appellant in New York after institution of this suit. Report No. 4 was submitted when the case was being tried before the court. The totals of the reports are as follows: (The assessment, $6,556,192, is exactly 75 per cent, of the above figure $8,741,589.) In all of its reports the company took a 30% per cent, depreciation and omitted going value. Reports Nos. 2 and 3 omitted items of property aggregating $885,808 claimed to be nonassessable by the company but which were included in report No. 4, and which the defendants claim should be included. They all also omit additional items amounting to $317,935 of property which had been reported as operative property of the company to the state authorities in previous years and which ought to be included according to the defendants. The estimate of reproduction new less depreciation at 15 per cent., with 8 per cent, going value, arrived at and shown on defendants’ table of computation, was $7,335,367. Recalculation of the defendants’ three methods of computation, 1, 4, and 5, produces the following result when weighted by attributing 20 per cent, to the first method and 40 per cent, to each of the others, as follows: Value by Reproduction Cost new less depreciation. Method No. 1 $7,335,367 20% of this value $1,467,073 Value by Capitalization of Net Income Method No. 4 6,473,571 4C% of this value 2,589,428 Value by Sale of Securities Method No. 5 6,883,113 40% of this value'2,753,245 Value by Combination of Methods $6,809,746 Appellees’ Assessment 6,555,690 Upon consideration of these tables and the data from which they were derived, we think it cannot be held that the assessment in question was wrongfully rested on book values or on reproduction cost new less depreciation plus going value. The strength as well as the weaknesses of the reproduction cost new less depreciation method of valuation have been recognized and explained by the courts. Cleveland, C., C. & St. L. Ry. Co. v. Backus, 154 U.S. 439, 14 S.Ct. 1122, 38 L.Ed. 1041; Harris Trust & Sav. Bank v. Earl (C.C.A.8) 26 F.(2d) 617, 618; Chicago & N. W. Ry. Co. v. Eveland (C.C.A.8) 13 F.(2d) 442; Northern Pac. Ry. Co. v. Adams County (D.C.) 1 F.Supp. 163, 174, 175, 190, 191; See Standard Oil Co. v. So. Pac. Co., 268 U.S. 146, 45 S.Ct. 465, 69 L.Ed. 890. But it is an allowable method of estimating values, providing undue weight is not accorded to it. In the computations above set forth, a weight of only 20 per cent, has been accorded, and the resultant figures do not show a grossly excessive or arbitrary assessment was arrived at. Neither do we sustain, the contention of the appellant that the only allowable depreciation was 30½ per cent. It would appear that, in view of the reports made by the company concerning the condition of the property, a less percentage could lawfully be taken for depreciation. Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182. We have not overlooked the testimony of Mr. John B. Campbell, called as a witness on rebuttal for the telegraph company, who testified, among other things, that, as a stockholder in the company, he had received no dividends for several years and that the company’s properties in Missouri were depreciated on the average of about 50 per cent. Other testimony reflects that dividends have been earned on the stock of the company continuously since 1870, and that the lesser rate of depreciation was not improper. 4. Capitalization of Earnings. Mr. Murphy prepared several tables reflecting an estimate of the value of the company’s property in Missouri according to the capitalization of earnings method, always taking averages over a five-year period, and appellant complains that it was fundamentally erroneous to use a five-year period in computing under this method. The evidence is that the earnings of the company were at the lowest point in the tax year in question, and it is argued that, as the only value in the company is its power to earn, when its earnings fell its value for taxing purposes should be reduced to the same low level. We think it was necessary for the commission to consider the reduced earnings, but we do not agree that, because the net earnings fell to little more than a third of what they were in 1928, the assessment should be reduced to the same extent. The long-maintained stability of the company cannot be disregarded, and it was not fundamentally erroneous to consider the five-year average in the computation. Great Northern Ry. Co. v. Weeks, 297 U.S. 135, 149, 56 S.Ct. 426, 80 L.Ed. 532; Rowley v. Chicago & N. W. Ry. Co., 293 U.S. 102, 105, 55 S.Ct. 55, 79 L.Ed. 222. In making the computation in one of the tables presented by him, Mr. Murphy capitalized net income of the system at the rate of 7 per cent, per annum for the three years 1928, 1929, and 1930, estimating the values at $319,190,540 for 1928, $330,542,-858 for 1929, and $282,528,985 for 1930, but for the two years 1931 and 1932 the valuation on this basis fell to $242,418,566 and $126,566,800 respectively upon a 6 per cent, capitalization used for those years. The appellant complains that there was fundamental error (among other things) because in making the computations the item of “expenses on rent of leased lines” was not deducted. The experts for the company claimed large deductions by reason of the rent items. On this issue Mr. Murphy testified that the reports of the company reflected that the company leased about 15 per cent, of the total wire which it used in the system and that it paid large sums for rent on the leased lines — about three and a half million dollars in the year 1928, for instance. It appears that the company had very little leased plant or equipment in Missouri, and Mr. Murphy testified that this fact had to be taken into consideration in making the computation of value upon the capitalization of earnings method used to make up the table on that basis. He pointed out that, unless the item of rent from leased property was treated the way he treated it, an unfair reduction of the value to be allocated to Missouri would result. He testified: “They pay three and one-half million dollars rent on that 15 per cent, of their wire,” and he said: “We take it (the item of rent) off after we determine the earnings of the entire wire mileage. Then you pay it, but it is not a proper deduction before you determine the earnings of your entire system.” The real inquiry of the commission was as to the result of capitalizing the earnings per mile in order to attribute just value to the miles in Missouri. In Mr. Murphy’s view, Missouri was not concerned that some of the company’s wires in other states were leased and rental paid therefor. As the ultimate allocation to Missouri from all of the computations according to this method was upon the comparison of wire mileages, we are not convinced that the method of computation described and illustrated by Mr. Murphy was fundamentally erroneous in the particular complained of. Neither can it be said that the 6 per cent, basis used for capitalization of earnings was fundamentally erroneous. Great Northern Ry. Co. v. Weeks, supra. 5. Sale of Securities Method. In estimating the system value of the telegraph company on the sale of securities basis, Mr. Murphy testified that the figures were all obtained from the company’s reports to the Public Service Commission as to quantities of securities, and the sale prices were obtained from letters of the company and from information furnished by the company to the Oklahoma state tax commission. “The prices on the securities which they report agree with our records but there are a number of securities they did not report that we had to get prices on elsewhere.” The appellants complain that the securities which Mr. Murphy here refers to and which the company did not report ought not to have been included in the computation of value according to the sale of securities method. It appears that the company carries on its books certain large items as liabilities which are peculiar. One item is carried m its reports at about $13,000,000, another item is “premiums on stocks” about $1,-163,350; “bonds owned by plaintiff and deposited as collateral for loans,”.$3,143,000; and “stocks and bonds purchased by plaintiff” amounting to about $1,765,550. The nature of the items was explained by Mr. Dow, testifying for the company. The question whether the items should have been included in Mr. Murphy’s computations of value on the “Sale of Securities” basis is not free from doubt. Mr. Murphy’s testimony reflects that he understood Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_initiate	G	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. UTAH HOTEL COMPANY, a Corporation, Appellant, v. Ira N. HINCKLEY, Collector of Internal Revenue, District of Utah, Appellee. No. 2151. Circuit Court of Appeals, Tenth Circuit. Dec. 3, 1940. Robert L. Judd, Paul H. Ray, S. J. Quinney, and A. H. Nebeker, all of Salt Lake City, Utah, for appellant. Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Warren F. Wattles, Sp. Assts. to the Atty. Gen., and Dan B. Shields, U. S. Atty., and Scott M. Matheson, Asst. U. S. Atty., both of Salt Lake City, Utah, for appellee. Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges. PER CURIAM. The questions presented on this appeal were considered by the Supreme Court of the United States and decided adversely to the contentions of the appellant here, in Helvering v. Northwest Steel Rolling Mills, Inc., 61 S.Ct. 109, 85 L.Ed. -, decided November 12, 1940, and Crane-Johnson Company v. Helvering, 61 S.Ct. 114, 85 L.Ed. -, decided November 12, 1940. The judgment is, therefore, 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_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. In re ZAFERIS BROS. & CO., Limited. BANK OF AMERICA NAT. TRUST & SAVINGS ASS’N v. SMALL. No. 7040. Circuit Court of Appeals, Ninth Circuit. Sept. 16, 1933. Louis Ferrari, of San Francisco, Cal., and Edmund Nelson and G. L. Berrey, both of Los Angeles, Cal., for appellant. Torregano & Stark and August B. Rothschild, all of San Francisco, Cal., for appellee. Before WILBUR, SAWTELLE, and MACK, Circuit Judges. MACK, Circuit Judge. Appeal from an order of the District Court affirming an order of the referee disallowing a proved claim for $12,300 (all amounts -are in round numbers) against the bankrupt until appellant should have surrendered an alleged preference of $8,500. Appellant’s claim was based on a note of the bankrupt for $10,000 and an overdraft in the latter’s account for the balance of $2,300’. A few weeks before the petition in bankruptcy was filed, and after appellant had several times pressed bankrupt to cover its overdraft which varied from day to day and at times exceeded $10,000, James Zaferis, stockholder in the bankrupt corporation who had guaranteed payment of all of bankrupt’s obligations to the bank, transferred the balance in his personal savings account with the bank, $4,100, and delivered to it a cashier’s cheek on another bank for $4,400, all of which was credited to bankrupt’s account. The overdraft at that time was some $200 less than the amount thus paid, but large outstanding checks about which all the parties knew, caused the account to be considerably overdrawn before the close of business on that day. For this, James Zaferis accepted from bankrupt its unsecured note covering the amount of his savings account and the cashier’s check. The referee and District Court held that the reduction of the overdraft by this transaction constituted a preference under U. S. C. title 11, § 96 (a), 11 USCA § 96 (a) (Bankruptcy Act § 60a). While appellant received a sum of money from Zaferis which satisfied part of the debt owed it by the bankrupt, other creditors did not suffer thereby. Two creditors were substituted for one, but bankrupt’s total indebtedness was unchanged. Its estate was therefore unaffected by the transaction. Appellee urges, however, that the corporation note evidences a borrowing by it from James Zaferis and therefore, though James Zaferis dealt directly with appellant, there was nevertheless a moment at which the sum loaned was in bankrupt’s control; and that thus the payment to the bank was in law made by bankrupt. The contention is untenable. True, in the negotiations that took place between James Zaferis and bankrupt’s president, his brother, the proposed reduction was always spoken of as a loan to the bankrupt; and the payment was made at least in part because of James’ anxiety to save the business. But the situation is entirely different from one in which a third person either as a volunteer or because of his own stake in the enterprise gives to the failing concern funds and a free hand to use them as general assets. In this case, the third person himself expended his funds specifically to relieve bankrupt’s distress. So far as bankrupt was concerned, there was merely a transposition of credits. At no time were the credits, supplied by James, at the complete disposal of the corporation. James, as guarantor, was necessarily protecting himself as well as bankrupt by the payment to the bank. By the payment which must be deemed as made under the guaranty, he became subrogated to the hank’s claim; the note which he took was but a formal recognition of the right thus acquired by him. That the Zaferis brothers, unfamiliar, as the referee observed, with Eng-fish, did not go so far in their analysis of motives and legal consequences, cannot alter the essential character of the transaction, as a payment by a third person out of his own funds. It therefore lacked the primary element of a preference, that of a transfer of the bankrupt’s property. Newport Bank v. Herkimer Bank, 225 U. S. 178, 32 S. Ct. 633, 56 L. Ed. 1042 (1912). It is well settled that payments by third parties of their own money do not constitute preferences. For further discussion and citation of cases, see First National Bank of Danville v. Phalen, 62 F. (2d) 21 (C. C. A. 7th, 1932). Order reversed and remanded. “A person shall he deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, * ** * made a transfer of any of his property, and the effect of the * * * transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.” 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_typeiss	D	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. In the Matter of LAW RESEARCH SERVICE, INC., Appellant, v. MARTIN LUTZ APPELLATE PRINTERS, INC., Appellee. No. 436, Docket 73-2113. United States Court of Appeals, Second Circuit. Submitted Jan. 23,1974. Decided May 2, 1974. Jane Compton Hammett, New York City, for appellant. David M. Ettinger, New York City, for appellee. Before HAYS, MANSFIELD and OAKES, Circuit Judges. MANSFIELD, Circuit Judge: Law Research Service, Inc. (“Law Research”) appeals from a decision of Judge Sylvester J. Ryan affirming Referee in Bankruptcy Herzog’s allowance of certain secured claims of Martin Lutz Appellate Printers, Inc. (“Lutz”) against the assets of Law Research. We affirm. On June 19, 1971, Law Research filed a petition pursuant to Chapter XI of the Bankruptcy Act, 11 U.S.C. §§ 701-799, for an arrangement with its unsecured creditors. Thereafter Lutz filed with the bankruptcy court two secured claims amounting to approximately $20,000 for services rendered in printing a brief and record for Law Research in connection with an appeal taken by The Western Union Telegraph Company in the Supreme Court of the State of New York from a judgment in excess of a million dollars against it in favor of Law Research. In order to secure payment for the printing work Law Research assigned to Lutz a part of the judgment. The assignment, which was executed on February 1, 1971, but not filed until May 5, 1971, forms the basis for Lutz’s claim that it is a secured creditor. Law Research sought before the Referee to defeat Lutz’s claims on two grounds: (1) that the charges for the printing services were excessive; and (2) that since the assignment was not perfected until May 5, 1971, a date well within the four-month period preceding bankruptcy, it was voidable as a preferential transfer under § 60 of the Bankruptcy Act, 11 U.S.C. § 96. The Referee rejected both arguments, and we think correctly so. The first contention is frivolous. The amount of the charges is supported by ample evidence. The debtor’s second claim, though it too must fail, requires some discussion. Law Research advances two theories in support of its contention that the assignment operated as a voidable preferential transfer. First, it suggests that there was no “perfectable” transfer at the time of the assignment because the funds underlying the judgment had yet to be identified and the judgment, being on appeal, was subject to reversal. Alternatively, it argues that the judgment was not in fact perfected until May, 1971, within four months of bankruptcy. We find both arguments Wanting. On the first score, the debtor confuses the law relating to assignment of present rights or intérests with that relating to assignment of future rights or interests. Under New York law, which controls on the question of perfection under § 60 of the Bankruptcy Act, see In re Morasco, 233 F.2d 11 (2d Cir. 1956), the assignment of an existing right creates an immediate lien in favor of the assignee that is valid against later lien creditors of the assignor. Stathos v. Murphy, 26 A.D.2d 500, 276 N.Y.S.2d 727 (1st Dept.1966) (Breitel, J.), affd., 19 N.Y.2d 883, 281 N.Y.S.2d 81, 227 N.E.2d 880 (1967). The assignment of a future right, on the other hand, creates a lien that attaches only at such time as the right accrues. See, e. g., Okin v. Isaac Goldman Co., 79 F.2d 317, 319 (2d Cir. 1935). Concededly the courts have encountered some difficulty in defining the contours of a future right or interest for purposes of assignment law. But whatever ambiguities there- may be, it is clear that the assignment of an existing judgment is of a present, not a future, interest. See Stathos v. Murphy, supra. Nor does In re Modell, 71 F.2d 148 (2d Cir. 1934), relied upon by Law Research, support its argument to the contrary. Modell involved the assignment of an interest in “any verdict, decision, judgment or proceeds thereof” which the assignor might recover in a pending suit. When two years later a judgment was entered and a formal assignment made (within four months of the assignor’s bankruptcy), the assignee maintained that his lien should relate back to the initial assignment. The claim was properly rejected. We ruled that the first purported assignment was merely an agreement to assign a judgment which might be acquired in the future and which, as it turned out, was not entered until after the four-month period preceding bankruptcy had commenced. Later in Okin v. Isaac Goldman Co., supra, we confirmed that Mo-dell turned on the absence of any existing judgment at the time of the purported assignment. But when, as in the present case, an assignment is of an existing judgment, it creates a lien in favor of the assignee at the time of its execution. That the judgment was on appeal and thus subject to reversal or modificátion does not affect this result. N. Y. General Obligations Law § 13-103, which authorizes the assignment of judgments, clearly envisions that such assignments may take place before the appellate process has rún its course. Under .this section the assignment of a judgment operates as a transfer of the present right to the judgment, subject though it may be to defeasance on appeal, and of the residual right to the underlying cause of action in the event of a reversal or vacation of the judgment. Indeed, we have given effect to assignments of an even more conditional nature, holding in Rockmore v. Lehman, 129 F.2d 892 (2d Cir. 1942) (construing New York law), cert. denied, 317 U.S. 700, 63 S.Ct. 525, 87 L.Ed. 559 (1943), that the assignment of monies to become due under the contract created a present lien even though the rights were contingent on performance by both of the contracting parties. And in In re Barnett, 124 F.2d 1005 (2d Cir. 1942), we found that the assignment by a daughter of her testate or intestate interest in her father’s estate during her father’s lifetime created a lien as of the date of its execution. A fortiori the assignment of the existing judgment by Law Research created a lien in favor of Lutz as of the date of the assignment’s execution. The assignment of Law Research’s interest in the judgment, though valid when executed on February 1, 1971, was not filed by Lutz until May 5, 1971. If, as Law Research maintains, filing was necessary to perfect Lutz’s interest in the judgment, the failure to file until within four months of bankruptcy would render the assignment a preference under § 60 of the Bankruptcy Act. The Referee declined to hold the assignment preferential, finding that the delay in filing did not stem from any negligence or fault on the part of the assignee. Indeed, Lutz apparently attempted to file its assignment shortly after its execution, but for reasons that are not entirely clear the clerk refused to accept it for filing. The Referee concluded that the clerk had refused the Lutz assignment because there was already on file a purported assignment of the entire judgment to another creditor. Since Lutz had made a good faith effort to file the assignment the Referee concluded that it would be inequitable under the circumstances not to relate the May 5th filing of the assignment back to the date when it was first offered for filing, i. e., in early February. There is support for the Referee’s decision that the filing should be deemed effective as of the earlier date. N.Y.U. C.C. § 9-403 provides that presentation of a filing statement constitutes filing. Furthermore, in construing the predecessors of § 9-402, we have held that when a clerk improperly refuses to accept a document tendered for filing, filing will nonetheless be deemed to have been effected. See, e. g., In re Mutual Board & Packaging Corp., 342 F.2d 294 (2d Cir. 1965). However, we need not remand for further facts as to the clerk’s rejection in the present case or plumb the effect of the attempted filing for we hold that filing was not in any event necessary to perfect the assignment of the judgment. N.Y.U.C.C. § 9-104(h) specifically excludes a right represented by a judgment from Article 9 of the Uniform Commercial Code. Thus, as was noted in the Practice Commentary accompanying Article 9, we are left without any statutory law governing perfection of assignments of judgments. Under such circumstances the pre-Code law continues to govern. See 1 G. Gilmore, Security Interests in Personal Property § 10.7 (1965). Under the pre-Code law filing was not necessary for the perfection of an assignment of a judgment or claim. See Malone v. Bolstein, 151 F.Supp. 544, 547 (N.D.N.Y.1956), affd., 244 F.2d 954 (2d Cir. 1957) (construing N.Y. Personal Property Law § 41, from which N.Y. General Obligations Law § 13-103 was derived), and Rockmore v. Lehman, supra. The present section authorizing the assignment of judgments, General Obligations Law § 13-103, likewise contains no filing requirement. Law Research’s reliance upon N.Y.C.P.L.R. § 5019(c) as supporting its contention that an assignment of a judgment must be filed in order to be perfected, is misplaced. It is true that § 5019, which deals generally with corrections and amendments of judgments, provides that the assignee of a judgment shall file a copy of the assignment in the County Clerk’s office. However, we agree with the Referee that the section is clearly intended for the benefit of the assignee, being designed to protect him against payment of the judgment to the wrong party and not as a means of providing notice to third-party creditors. See Boyd v. Buffalo Steam Roller Co., 87 Misc. 20, 149 N.Y.S. 1050 (Co.Ct. 1914), affd., 167 App.Div. 959, 152 N.Y.S. 1099 (4th Dept.1915). We conclude that the assignment of the judgment against Western Union was perfected as of the date of its execution in early February and therefore falls outside the four-month period preceding bankruptcy. The decision of the district court is affirmed. . In December 1971 Law Research entered into a settlement with Western Union. Lutz seeks to enforce its claim against the proceeds of that settlement. . The theme of this argument is not unlike that of N.X.U.C.C. § 9-204, which provides that a security interest cannot attach until the debtor has rights in the collateral. If the assignment of a judgment were covered by the U.C.O. (see § 9-104(h)), however, we would be confident that Law Research had such rights in the judgment as to meet the test of § 9-204. . For security interests covered by the U.C. C. this concept has of course been codified in § 9-204(1), which provides : “A security interest cannot attach until there is agreement (subsection (3) of Section 1-201) that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.” . The earliest and certainly purest form of the future assignment can be found in Field v. City of New York, 6 N.Y. 179 (1852), where the assignor assigned moneys he expected to earn under a contract he expected to enter. The court, while recognizing that the assignment could not operate to pass a present claim, concluded that the assignment “ . . . did, nevertheless, create an equity, which would seize upon those claims as they should arise. ...” Because this “equitable” lien would not attach until the claim actually arose, intervening lien creditors could acquire a position superior to the assignee. A similar rule has been applied in cases dealing with a pledge of chattels to be acquired in the future, e. g., Titusville Iron Co. v. City of New York, 207 N.Y. 203, 100 N.E. 806 (1912), and an assignment of a future refund on a liquor license deposit, e. g., City of New York v. Bedford Bar & Grill, 2 N.Y.2d 429, 161 N.Y.S.2d 67, 141 N.E.2d 575 (1957). On the other hand, we have declined to extend the same treatment to the assignment of a mere expectancy in an estate. See, e. g., In re Barnett, 124 F.2d 1005, 1008 (2d Cir. 1942) (“It is not our duty, of course, to explain why the New York courts distinguish between the validity of mortgages and pledges of after-acquired property, and assignments of expectancies.”). The vagaries in the development and application of the law of assignment of future rights and interests have led one court to the frank admission that the cases cannot all be reconciled. Stathos v. Murphy, supra. . “[I]n that decision [Modell] the assignment which purported to cover the right, title, and interest of the assignor in any ‘judgment or proceeds thereof’ which the latter might recover in a pending action for malicious prosecution did not operate upon the judgment until within the four months’ period, for only within that period was the judgment entered.” Okin v. Isaac Goldman Co., supra, 79 F.2d at 319-320. . The continuing force of the Modell decision as it relates to the assignment of an expected judgment or recovery may even be doubted. The Stathos court characterized the Modell decision as one resting on ancient and largely discredited distinctions between law and equity. 26 A.D.2d at 506, 276 N.Y.S.2d at 733. According to Stathos the better view is that the assignment of personal injury claims and, a fortiori, contract claims is effective to create a present lien in the assignee. 26 A.D.2d at 504-506, 276 N.Y.S.2d at 731-733. . It is likewise unclear what change in circumstances prompted the clerk to accept the Lutz filing in May. . The president of Law Research testified that he had given an earlier assignment in blank to Joseph S. Herbert & Co. and that, although the assignment was to have been in payment of a $10,000 debt owed by Law Research to Herbert & Co., the latter filled in the full amount of the judgment in the blank assignment. The Referee, however, did not credit portions of the testimony given by the witness. . “§ 9-403. What Constitutes Filing; Duration of Filing; Effect of Lapsed Filing; Duties of Filing Officer “(1) Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer constitutes filing under this Article.” . “§ 9-104. Transactions Excluded From Article “This Article does not apply í¡: * :¡: * * “(h) to a right represented by a judgment ■ . . .” . “§ 5019. Validity and correction of judgment or order; amendment of docket * * * * * “A person other than the party recovering a judgment who becomes entitled to enforce it, shall file in the office of the clerk of the court in which the judgment was entered or, in the case of a judgment of a court other than the supreme, county or a family court which has been docketed by the clerk of the county in which it was entered, in the office of such county clerk, a copy of the instrument on which his authority is based, acknowledged in the form required to entitle a deed to be recorded, or, if his authority is based on a court order, a certified copy of the order. Upon such filing the clerk shall make an appropriate entry on his docket of the judgment.” . Filing under § 5019(c) also serves to assist the assignee in directly enforcing the judgment against the judgment debtor. With his right to the judgment a matter of court record, the assignee himself can invoke the court’s process against the judgment debtor. See, e. g., N.Y.C.P.L.R. § 5225(a). Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_state	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". LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Plaintiff-Appellee, v. PUBLIC SERVICE COMMISSION OF TENNESSEE and the State Board of Equalization of Tennessee, Defendants-Appellants. No. 17180. United States Court of Appeals Sixth Circuit. Feb. 14, 1968. McCree, Circuit Judge, dissented. Milton P. Rice, Asst. Atty. Gen., Nashville, Tenn., for appellants; George F. McCanless, Atty. Gen., State of Tennessee, Eugene Ward, Gen. Counsel, Public Service Commission, State of Tennessee, Nashville, Tenn., on brief. David M. Keeble, Nashville, Tenn., for appellee; W. L. Grubbs, Philip M. Lanier, Louisville, Ky., Hooker, Keeble, Dodson & Harris, Nashville, Tenn., on brief. Before PECK, and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge. McALLISTER, Senior Circuit Judge. This action was brought by the Louisville and Nashville Railroad Company against the Public Service Commission of Tennessee, and the Tennessee State Board of Equalization, and others, to enjoin the certification and enforcement of tax assessments against the Railroad Company. After an extended hearing, Judge William E. Miller held that the record of the case established a systematic and long-standing policy of the Public Service Commission to assess the Railroad’s property within the state at a much higher percentage of actual cash value than the custom of local assessors in assessing other property at a smaller fraction of actual cash value, and resulted in violation of the Tennessee Constitution and statute, and denial of equal protection of the plaintiff’s rights under the Fourteenth Amendment of the Federal Constitution. The court held that although, theoretically, the Railroad Company could pursue certain procedural avenues in the state courts, nevertheless, the state law would bar relief to the Railroad Company unless it could prove that it had been assessed at more than actual cash value, which it could not do. Finding that the Railroad Company had been substantially over-assessed in relation to other taxpayers in the state, and that relief would be denied it unless the defendants were enjoined from certifying or enforcing the assessment, the court so enjoined the defendants, without prejudice to the State Board of Equalization of Tennessee, to rehear and reconsider the assessment, so that it might be made to conform with the requirement of equal protection of the law under the Fourteenth Amendment; and held that, pending such redetermin-ation, the case would be retained on the active docket, with either party having the right to apply to the court, at any time, for other or additional orders. This controversy involving the constitutional rights of the appellee and the rights of the State of Tennessee was decided by Judge Miller in a compendious opinion setting out all the pertinent facts and discussing the applicable law as well as annexing to his opinion copious appendices setting forth the provisions of the Tennessee Constitution and the Tennessee Statutes relevant to the issues. One of the detailed appendices sets forth the actual tax rates for the various counties of the state, the ratio of the assessed to actual value in the counties, and the effective tax rate in each of the counties. The foregoing is an outline of the case, the issues, and decision of the court in a controversy which is important, complex, and of great interest, and which was ably presented by arguments and briefs on appeal by counsel on both sides. The gist, then, of appellee’s contention is that by the assessment and taxation of appellee’s property through the method adopted by the Public Service Commission, appellee suffered unlawful discrimination in violation of its rights under the Fourteenth Amendment, commanding equality of treatment. Appellee’s property, according to Article 2 of the Constitution of Tennessee, and all other property in Tennessee, are required to be taxed at their actual cash value, and no one species of property, from which a tax may be collected, shall be taxed higher than any other species of property of the same value. The Tennessee Constitution also provides that the legislature shall tax all property according to its value, upon the principles established in regard to state taxation. The Tennessee legislature has provided that all property of every kind shall be assessed at its actual value and, with regard to railroad property, that the Public Service Commission shall assess all such property at its actual cash value. It is easy enough to see how, if one kind of property is assessed at a different rate of cash value than another kind of property and that they are both taxed on the basis of such assessments, the two kinds of property are not taxed according to their actual tax value. If one kind of property is taxed at 10% of its actual value, and another kind of property is taxed at 90% of its actual value, any intelligent person could perceive the inequality of the basis of such taxation, and the injustice of it. But appellant cites to us, and relies upon, the ease of Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, to support its contention that the assessment and taxation of appellee railroad in this case is not in violation of the latter’s rights to the equal protection of the laws. In the Browning case, the Supreme Court, speaking through Mr. Justice Frankfurter, said: “The Railway first asserts that it is a victim of such invidious discrimination in the administration of Tennessee’s tax statutes as is proscribed by the guaranty of ‘the equal protection of the laws.’ The claim is founded upon the following circumstances. As we have already indicated, there are two separate modes for the assessment of property in Tennessee, each with its distinctive procedure. The property of public service corporations is assessed by the Commission; all other property by local officials. This broad classification, separating two very different types of property, has been reflected, according to petitioner’s contention, by a corresponding difference in the bases of assessment. For more than forty years, so it was urged before the courts of Tennessee and later here, the county assessors have systematically valued property at far less than its true worth, while utility and railroad properties have been assessed by the Commission at full value. This systematic differentiation, petitioner claims, has been continuous and statewide in its operation; has been ‘repeatedly brought to the attention of the General Assembly of the State of Tennessee’; has been left uncorrected by that body; and until the present case, so far as we are informed, has been unchallenged. In support of its claim the Railway adduced official and unofficial reports as well as a volume of affidavits from local assessing officials in the counties through which its lines run — all to the effect that locally assessed property was undervalued. The issue of forbidden discrimination was thus squarely raised below. But the Tennessee Supreme Court did not deem petitioner’s evidence sufficient to overcome the presumption that in the exercise of its reviewing function, the Board had equalized assessments in accordance with the command of state law. We should be reluctant on such a question to reject the state court’s determination as without foundation, and there is not enough in the record to warrant its repudiation.” In his opinion in the instant case in the district court, Judge William Miller distinguished the Browning case by clearly pointing out that the Tennessee Supreme Court had never passed upon the issues adjudicated in the district court, and that there was no question of rejecting the state court’s determination in the matter. He also referred to the Constitution of the State of Tennessee and the relevant tax statutes which prohibited the classification of property for tax purposes or the valuation of any property at less than its actual cash value. In the Browning case, after deciding the single issue involved, Mr. Justice Frankfurter went on to state that even if the ground taken by the state supreme court in that case was “a strained evasion of the differentiation between utility property on the one hand and all the rest on the other, we should still find no denial of the equal protection of the laws.” This statement was, as Judge Miller pointed out, clearly dicta, and moreover was not pertinent to the instant case, which was not an attempt to overrule the state supreme court. Further, Justice Frankfurter stated that, “Since, so far as the Federal Constitution is concerned, a state can put railroad property into one pigeonhole and other property into another, the only question relevant for us is whether the state has done so. If the discrimination of which the Railway complains had been formally written into the statutes of Tennessee, challenge to its constitutionality would be frivolous. If the state supreme court had construed the requirement of uniformity in the Tennessee Constitution so as to permit recognition of these diversities, no appeal could successfully be made to the Fourteenth Amendment.” (Emphasis supplied.) In the instant case there has been no discrimination formally written into the statutes of Tennessee, nor had the Supreme Court of Tennessee construed the requirement of uniformity in the Tennessee Constitution so as to permit recognition of these diversities. Hence, these statements in the Browning case have no relevance or controlling effect in the instant case. Furthermore, in the Browning case, Justice Frankfurter emphasized that: “It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” Regardless of what may be meant by the “dead words” of the written text of either constitution or statute, it is to be emphasized, as Mr. Justice Frankfurter has himself emphasized it, that “[sjettled state practice cannot supplant constitutional guarantees”; and, in the instant case no state practice can supplant the constitutional guarantee in Tennessee that all property of every kind shall be assessed at its actual value. We are further referred to Mr. Justice Frankfurter’s statement in the Browning case that “ [I] f the state supreme court chooses to cover up under a formal veneer of uniformity the established system of differentiation between two classes of property, an exposure of the fiction is not enough to establish its unconstitutionality. Fictions have played an important and sometimes fruitful part in the development of law.” However, we are not here concerned with any such fiction. For the Supreme Court of Tennessee has not chosen to cover up under a formal veneer of uniformity an established system of differentiation between two classes of property; and there is, accordingly, no fiction, to be' either concealed or exposed, that could have any bearing upon constitutionality, or that warrants our consideration. In retaining the case on the active docket of the district court, without prejudice to the right of the State Board of Equalization to rehear and reconsider the assessment in this case, so that it may be made to conform with the requirements of equal protection of the law under the Fourteenth Amendment, Judge Miller gave full opportunity to the State of Tennessee to secure a just adjudication of its rights. In accordance with the foregoing, the judgment of the district court is affirmed for the reasons set forth in the opinion of Judge Miller, reported in 249 F.Supp. 894. . A fiction of law is always founded in equity (In fictione juris semper subsistit aequitas). Blackstone’s Commentaries, edited by William Carey Jones, Book III, p. 1553. Bentham poured ridicule on legal fictions wherever he met them. (See Maine’s Ancient Law, London, 1894, p. 27.) Pound, in his great work on jurisprudence says that while fictions have played an important part in legal history, “we must not forget that they are a clumsy device appropriate only to periods of growth in a partially developed political organization of society in which legislation on any large scale is not possible. They are not suited to later times and developed systems. In a period of growth, when ideas are few and crude, they enable a body of law to be molded gradually, without legislative action, to meet immediate wants as they arise and to conform to the requirements of cases as they arise. # $ * $ $ “After a certain stage of legal development, on the other hand, fictions retard growth and clog development. In a rational age, an age of substance rather than form, when legal doctrines are logically worked out and a body of learned jurists is at hand to apply and develop them, fictions may confuse and conceal the substance of legal precepts. In a sense they were devised to conceal the substance when the substance was not regarded as of legal consequence. They may operate still to conceal the substance after later ideas have made the substance almost the only thing of legal consequence.” Jurisprudence, by Roscoe Pound, Vol. III, pp. 465, 466. (West Publishing Company, St. Paul, Minn., 1949) 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_casetyp1_7-3-3	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 - commercial disputes". ELLIOTT v. EMPIRE NATURAL GAS CO. et al. (Circuit Court of Appeals, Eighth Circuit. March 7, 1925.) No. 6413. 1. Courts ©=280 — Circuit Court of Appeals should deny jurisdiction as to itself and court from which record comes, if it is apparent jurisdictional amount is not involved. Circuit Court of Appeals should deny jurisdiction as to itself and court from which record comes, if it is apparent from whole record and nature of case that jurisdictional amount is not involved. 2. Courts ©=329 — General allegation that amount in controversy exceeds jurisdictional requirement is insufficient, where record indicates the contrary. Allegation that amount in controversy exceeds jurisdictional requirement is insufficient to establish jurisdiction, where it is apparent from record that such amount is not involved. 3. Courts ©=328(l) — “Value of matter in controversy,” within statute fixing jurisdiction, defined. “Value of matter in controversy,” within Judicial Code, § 24 (Comp. St. § 991), means pecuniary result to either party which judgment entered m case would directly produce, either at once or in future. I Ed. Note. — For other definitions, see Words and Phrases, Value in Controversy.] 4. Courts ©=328(4) — Value of separable rights of one person against many, or many against one, may not be added1 together to bring amount in controversy within jurisdictional requirements. Where right, value of which is test of jurisdiction, under Judicial Code, § 24 (Comp. St. § 991), exists in favor of many persons as against one, or in favor of one against many, and is in its nature separable, then the separable values cannot be added together to bring the value of the matter in controversy, within jurisdictional requirements. 5. Courts ©=328(I) — Amount or value of right in dispute cannot be augmented for jurisdictional purposes by collateral effect a judgment may produce. Amount or value of right in dispute cannot be augmented for jurisdictional purposes by collateral effect judgment in ease may produce. 6. Courts ©=328(4) — Suit to enjoin gas company from cutting off plaintiff’s supply, or attempting by other coercive means to collect sum of $16, held not to involve jurisdictional amount. Suit'against gas company to enjoin it from cutting off plaintiff’s gas supply, or from attempting by other coercive means to collect $16 claimed by virtue of order of state Public Utilities Commission, held not to involve jurisdictional amount, under Judicial Code, § 24 (Comp. St. § 991), though judgment might have far-reaching collateral effect on defendant’s claims against persons other than plaintiff. Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Suit by Earl C. Elliott against the Empire Natural Gas Company and others. Decree for defendants, and plaintiff appeals. Reversed, and case remanded, with instructions to remand same to stale court. Sec, also, 298 F. 299. Robert C. Foulston and George Siefkin, both of Wichita, Kan., for appellant. H. 0. Caster and Robert D. Garver, both of Bartlesville, Okl., for appellee Empire Natural Gas Co. Before SANBORN and KENYON, Circuit Judges, and BOOTH, District Judge. KENYON, Circuit Judge. This ease is here on appeal from the District Court of the United States for the District of Kansas. Appellant brought action in the district court of Sedgwick county, Kan., against Empire Natural Gas Company, a Delaware corporation, and Kansas Gas & Electric Company, a West Virginia corporation, appellees here, asking an injunction restraining them from cutting off the supply of natural gas which appellant was receiving from them, and from attempting to collect by means of such coercive methods the sum of $16, which appellee companies claimed to be due by virtue of a certain order- made December 22, 1919, by the Public Utilities Commission for the state of Kansas, which permitted them to charge $2 per month per customer from January 1, 1920, in addition to rates theretofore charged for natural gas for such period as hereinafter referred to. At the time the order was made by the Publie Utilities Commission eases were pending in this court on appeal involving certain rights of the Wichita Natural Gas Company, predecessor in interest of Kansas Gas & Electric Company in the matter of rates for gas furnished to the inhabitants of various cities of Kansas, and the order provided that, if the said Wichita Natural Gas Company should prevail in these appeals, the local distributing companies could in eaeh city charge and collect from each domestie consumer of gas therein, in addition to the regular rates, the sum of $2 every month from January 1, 1920, to the 1st day of the month following the determination of appeals. Without reviewing such litigation, it is sufficient to say that the same resulted in favor of the Wichita Natural Gas Company; decisions being rendered in this court on or about August 17, 1920. Appellant was notified on June 12, 1922, that he was indebted to appellees for the use of the Empire Natural Gas Company in the sum of $16, being the $2 per month provided for by the order of the Kansas Public Utilities Commission for a period of 8 months, and that unless he paid the bill withip 48 hours, service of natural gas would be discontinued to his premises and would not be resumed until the bill was paid. The 8 months was the period from January 1, 1920, to the 1st day of the first month following the decision in this court before referred to. Appellant thereupon commenced this action. The ease was removed to the District Court of the United States for the District of Kansas, referred to a master, report made by him, which was confirmed by the court, and decision entered in favor of appellees herein. No question was raised in the trial court as to jurisdiction. Upon appeal and submission to this court it was apparent to us from the record then presented that jurisdiction in the federal court was lacking. Following the procedure laid down by this court in Lamed v. Jenkins, 109 F. 100, 48 G. G. A. 252, we ordered the submission of the ease set aside, and its replacement upon the calendar, with permission to counsel on either side to bring other parts of the record to the attention of the court, as bearing on the question of jurisdiction. This has been done, and an additional transcript of record filed, which contains the petition for removal from the district court of Sedgwick county, Kan., to the United States District Court, As our attention to the question of jurisdiction was challenged in the former appeal (298 F[ 299), it is natural that we again survey the record on this question; it being the duty of this court to deny jurisdiction as to itself and as to the court from which the record comes, if it is apparent from the whole record and the nature of the case that the jurisdictional amount is not really involved. A general allegation under such circumstances that-the amount in controversy exceeds the jurisdictional requirement is of no avail. Garvin v. Kogler (C. C. A.) 272 F. 442; Norton et al. v. Lamey (C. C. A.) 289 F. 395;. Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; Vance v. W. A. Vandercook Co., 170 U. S. 648, 18 S. Ct. 674, 42 L. Ed. 1100; Lion Bonding Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871; Morris v. Gilmer, 129 U. S. 315, 9 S. Ct. 289, 32 L. Ed. 690. Jurisdiction in this cause depends upon “where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000.” Judicial Code, § 24 (Comp. St. § 991). What is the matter in controversy here,. and does its sum or value exceed $3,000,. exclusive of interest and costs? The matter in dispute is the alleged right to collect from appellant for 8 months the $2 per month extra charge allowed to appellees by the Public Utilities Commission of the state-of Kansas for supplying natural gas to-its consumers in the city of Wichita and to-bring about payment by appellant by turming off the supply of gas being furnished to him. It is clear appellant has no right involved in the controversy equaling in value the jurisdictional amount. If appellant succeeds in his suit, the result is that appellees could not collect the $16 by shutting off the natural gas, or possibly in any other way. If there is jurisdiction, it must be because of the value of appellees’ alleged rights. Appellees claim in the petition for removal from the state court that the rights which it seeks to protect against the assault of appellant are of a sum or value equaling the jurisdictional requirement. Such claimed rights are twofold: (1) The right to collect a certain sum from the appellant under the order of the Public Utilities Commission for Kansas, and to collect like sums from other persons not parties to this cause, but who are similarly situated; (2) the right to shut off the gas being furnished to appellant; and all other parties similarly situated, in order to force payment of said sums of $2 per month per consumer for a period of 8 months. This particular subdivision of section 24 of the Judicial Code, relating to “the matter in controversy” and “the sum or value of,” has been the subject of much consideration by text-writers and by the courts. We refer to some of these enunciations. In Poster on Federal Practice, § 13, tho author states tho rule as follows: “In a suit for an injunction, the value of the matter in dispute is that of the object of the bill, namely, the value, to the plaintiff, of the right for which he prays protection, or the value, to the defendant, of the acts of which the plaintiff prays prevention.” Rose’s Code of Federal Procedure, § 129, note (g), is in part as follows: “In a suit for an injunction the matter in dispute is not determined by the amount which the complainant might recover at law for tho acts complained of, but by the value of tho right to be protected or the extent of the injury to be prevented by the injunction.” In Smith v. Adams, 130 U. S. 167, 175, 9 S. Ct. 566, 569 (32 L. Ed. 895), the court says: “By matter in dispute is meant the subject of litigation, the matter upon which the action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony is taken. It is conceded that the pecuniary value of the matter in dispute may be determined, not only by the money judgment prayed, where such is the case, hut in some eases by the increased or diminished value of the property directly affected by the relief prayed, or by the pecuniary result to one of the parties immediately from the judgment. Thus a suit to quiet the title to parcels of real property, or to remove a cloud therefrom, by which their uso and enjoyment by the owner are impaired, is brought within the cognizance of tho court, under the statute, only by the value of the property affected.” In Mississippi & Missouri Railroad Co. v. Ward, 2 Black, 485, 492 (17 L. Ed. 321), an attempt was made to abate the Rock Island bridge over the Mississippi river, the bill being filed on the theory that the bridge was an obstruction to navigation. No damages were asked. The Supreme Court said: “But the want of a sufficient amount of damage having been sustained to give the federal courts jurisdiction will not defeat the remedy, as the removal of the obstruction is the matter of controversy, and, the value of the object must govern.” Whitman v. Hubbell (C. C.) 30 F. 81, was a suit to restrain the maintenance of an awning over a part of a street adjoining tho plaintiff’s premises. It was held that the matter in dispute was the value of the right to maintain the awning, and not the amount of damage done by it to the plaintiff. In Texas & P. Ry. Co. v. Kuteman, 54 F. 547, 4 C. C. A. 503, the railroad company sought by an injunction to restrain a shipper from prosecuting in a state court a multiplicity of suits for freight overcharges. The court held that the maintenance of the schedule rate under which the charges were made was the real subject of dispute, and that jurisdiction was measured by the value of such right of maintenance. In Butchers’ & Drovers’ Stockyards Co, v. Louisville & N. R. Co., 67 F. 35, 14 C. C. A. 290, the question arose on eomplaint regarding equal facilities for shipping cattle. The eomplaint alleged the damage by the refusal of such equal facilities exceeded $2,000, the then jurisdictional requirement. It was held that in the absence of plea to jurisdiction this allegation was sufficient. In City of Hutchinson et al. v. Beckham et al., 118 F. 399, 55 C. C. A. 333, this eourt held that the amount there involved was the value of the complainant’s right to conduct its business without being subjected to the, burden of illegal license taxes imposed by a city ordinance, which was being enforced by the arrest of its employes. Tn Riverside & A. Ry. Co. v. City of Riverside et al. (C. C.) 118 F. 736, a question arose concerning the right of a city to shut off the supply of electric power under a contract. The court held the amount or value in dispute for jurisdictional purposes was the value of complainant’s right under the contract, and not the amount of payments to be made thereunder. In Board of Trade of City of Chicago v. Celia Commission Co. et al., 145 F. 28, 29, 76 C. C. A. 28, 29 (this court),’the question of jurisdictional amount or value was raised, and the court said: “In a suit to enjoin a threatened or continued commission of certain acts the amount or value involved is the value» of the right which the complainant seeks to protect from invasion, or of the object tó be gained by the bill. It is not the sum he might recover in an action at law for the damage already sustained, nor is he required to wait until it reaches the jurisdictional amount.” In Studebaker v. Salina Waterworks Co. (D. C.) 195 F. 164, suit was brought by complainant to restrain defendant from cutting off its water.service, threatened because of complainant’s refusal to pay for meter water service ffurnishe^l 'him by defendant. The' court held that the allegations of the petition for removal presented a ease in which there was involved a right of defendant company to transact its business affairs in the method it desired to pursue as to all its customers in the city of Salina, and that the value of the right, and not the amount demanded of complainant, was the subject-matter involved in the controversy with complainant; In Martin v. City Water Co. of Chillicothe, Mo. (D. C.) 197 F. 462, ’the petition for removal from the state court alleged that the suit involved the question of the right of the company to maintain a metered service and to charge a meter rate for water, and that the amount in eontro;versy exceeded, exclusive of interest and costs, $3,000. The court held that the right claimed by defendant to be at stake was sufficient to confer jurisdiction, and said: “In due time, also, the amount concededly involved would ripen into the necessary jurisdictional amount.” In Scott v. Donald, 165 U. S. 107, 17 S. Ct. 262, 41 L. Ed. 648, the defendant had threatened to seize and destroy the liquor imported by plaintiff into the state, the record showing that the party intended to import liquor of a value exceeding $2,000. Held, the jurisdictional amount sufficiently appeared. In Berryman v. Board of Trustees of Whitman College, 222 U. S. 334, 32 S. Ct. 147, 56 L. Ed. 225, the college sought to enjoin the collection of a tax against it on the ground that it was exempt from taxation by contract. It was held the matter in dispute was the claimed right of exemption. The pecuniary result of the judgment there would be greater than the jurisdictional amount. In Western & Atlantic Railroad v. Railroad Commission of Georgia et al., 261 U. S. 264, 43 S. Ct. 252, 67 L. Ed. 645, the Supreme Court, in a suit by a railroad attacking as unconstitutional a state order requiring -it to use and operate an industrial spur track, found that the jurisdictional amount was involved; that the pecuniary amount involved included, not only the cost of construction, but interest thereon, and depreciation, maintenance, and operating. expenses capitalized at a reasonable rate. In Sovereign Camp, Woodmen of the World, v. E. E. O’Neill, B. F. Vaughan, R. H. Buck, et al., 45 S. Ct. 49, 69 L. Ed.—(opinion Hied on Supreme Court of the United States November 17, 1924), the question of jurisdiction is discussed. The court found that a conspiracy to prosecute by concert of action numerous baseless claims existed, and that this partook of the nature of a fraudulent conspiracy, and that in a suit 'to enjoin them from being separately prosecuted it must be deemed to tie together such several claims as one claim for jurisdictional purposes. The action was brought by the Sovereign Camp, Woodmen of the World, against 25 of its members, citizens of Texas, who had brought 25 separate actions at law against the society in a Texas court to recover various amounts; each one claiming, however, less than $3,000. The trial court dismissed the bill on the ground that the court was without jurisdiction, the requisite jurisdictional amount not being present. The Supreme Court reversed this, holding jurisdiction existed. It would unduly extend this opinion to refer to numerous other eases where jurisdiction has been sustained. Wé find none closely in point. No rules as to how jurisdictional amount shall be arrived at can» be laid down governing every case, for there are different shades of fact differentiating the various eases, and each one is dependent upon its own particular facts and circumstances. This case is not claimed to be what is sorpetimes termed a class case. No one here is suing to maintain any one else’s right. Appellant is a single litigánt, suing for himself alone; he speaks for none other. There is no question of joint or common, undisputed, united interest collectively aggregating the jurisdictional amount, as discussed in Troy Bank v. G. A. Whitehead & Co., Inc., 222 U. S. 39, 32 S. Ct. 9, 56 L. Ed. 81; Eberhard et al. v. Northwestern Mut. Life Ins. Co., 241 F. 353, 154 C. C. A. 233; Louisville & N. R. Co. v. Smith et al., 128 F. 1, 63 C. C. A. 1; Cowell et al. v. City Water Supply Co. et al., 121 F. 53, 57 C. C. A. 393; Local Union No. 497, etc., v. Joplin & P. Ry. Co. (C. C. A.) 287 F. 473. The question involved is not the value of the right to conduct a business unmolested and uninterfered with, as in Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Hunt v. New York Cotton Exchange, 205 U. S. 322, 27 S. Ct. 529, 51 L. Ed. 821; City of Hutchinson et al. v. Beckham et al., 118 F. 399, 55 C. C. A. 333; Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U. S. 121. 36 S. Ct. 30, 60 L. Ed. 174; Board of Trade v. Celia Commission Co., 145 F. 28, 76 C. C. A. 28. The question of the value of a right to maintain a schedule of rates, as in Texas & P. Ry. Co. v. Kuteman, 54 F. 547, 4 C. C. A. 503, is not here. If this penalty can be termed a rate, it bad ended nearly 2 years before the attempt was made to collect. It is not a case whore the amount involved will ripen within any reasonable time into the jurisdictional amount, as in Martin v. City Water Co. of Chillicothe, Mo. (D. C.) 197 F. 462. It will never be more than the $16, plus interest. It is not a question of a right under a contract equaling in value the jurisdictional amount, as in Riverside & A. Ry. Co. v. City of Riverside et al. (C. C.) 118 F. 736; Berry-man v. Board of Trustees of Whitman College, 222 U. S. 334, 32 8. Ct. 147, 56 L. Ed. 225. Nor is it a ease where the pecuniary result of a judgment for or against plaintiff would be more than the jurisdictional amount as in Hunt v. New York Cotton Exchange, 205 U. S. 322, 27 S. Ct. 529, 51 L. Ed. 821; W. & A. R. R. v. R. R. Comm., 261 U. S. 264, 43 S. Ct. 252, 67 L. Ed. 645; McNeill v. Southern Ry. Co., 202 U. S. 543, 26 S. Ct. 722, 50 L. Ed. 1142; Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693. Any judgment in this ease settles nothing, except the right of appellees to collect from this particular appellant and to collect by the coercive method threatened. As far as the alleged rights of appellees are related to appellant they amount in value to $16. If appellees should win the ease, they are at liberty to use the coercive measure of collection by shutting off the natural gas. Of course, the decision of the case may have an effect upon the thousands of other consumers of natural gas in the city of Wichita, and it may not. So far as this record is concerned, we are not advised whether they have paid the additional rate of $2 for the 8 months. If they have not, a decision of the federal court that the order of the Public Utilities Commission of December 22, 1919, was void, and that collection of the $2 per month could not be made, would not tend to instill in them a desire to pa.y it. On the other hand, a decision of the court that the order was legal, and that such coercive measures could be used, might accelerate payments. All this would indirectly bear on the value of appellees’ rights. It is perfectly apparent, however, that the value of the matter in dispute in this particular case between these particular parties, unaffected by its relationship to other parties similarly situated, is $16 and no more. If, in arriving at a value of a right claimed, a court may consider the value of such right as augmented by its relationship to and effect upon other persons not parties to the case, then the door to federal jurisdiction would be opened wide. Many eases decided in the courts affect others indirectly who are not parties thereto. ‘ The alleged rights of appellees as against others who are not parties to the suit are not in dispute in this ease, within the meaning of the statute. We think “the value of the matter in controversy,” as the term is used in section 24 of the Judicial Code, means the pecuniary result to either party which the judgment entered in the case would directly produce, either at once or in the future. Where the right (the value of which is taken as the test) exists in favor of many persons as against one, or in favor of one as against many, and in its nature is separable, then the separable values cannot be added together to make the jurisdictional sum, and the separable valué furnishes the jurisdictional test. These propositions are abundantly sustained by decisions of the federal courts. The leading case is Elgin v. Marshall, 306 U. S. 578, 582, 1 S. Ct. 484, 488 (27 L. Ed. 249). The question was there raised as to whether the amount involved in the suit was sufficient to give the Supreme Court jurisdiction of the writ of error to review the judgment upon interest coupons against the town of Elgin, Minn., in the sum of $1,660. These coupons were detached from bonds amounting to $7,500 issued under the Minnesota statutes. The defense to the suit was the unconstitutionality of the issue of the bonds. The court held that the jurisdictional amount was limited to the amount involved in the suit, viz..$1,660. The Supreme Court there said (page 582, 1 S. Ct. 488): “Indeed, so strictly has it been applied that, in cases where, although the entire matter in dispute in the suit exceeds in value the jurisdictional limit, nevertheless, if there are several and separate interests in that sum, belonging to distinct parties,.and constituting distinct causes of aetion, although actually united in one suit and growing out of the same transaction, the jurisdiction of the court has been constantly denied.” And the court also said (pages 579, 580, 1 S. Ct. 486): “In our opinion, sections 691 and 692, Rev. Stat., which, as amended by section 3 of Act Feb. 16, 1875, c. 77, limit the jurisdiction. of this court, on writs of error and appeal, to review final judgments in civil actions, and final decrees in cases of equity and of admiralty and maritime jurisdiction, to those where the matter in dispute, exclusive of costs, exceeds the sum or value of $5,000, have reference to the matter which is direetly in dispute, in the particular cause in which the judgment or decrees sought to be reviewed has been rendered, and do not permit us, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.” See, also, Parker v. Morrill, 106 U. S. 1, 1 S. Ct. 14, 27 L. Ed. 72. In Opelika City v. Daniel, 109 U. S. 108, 3 S. Ct. 70, 27 L. Ed. 873, the Supreme Court followed Elgin v. Marshall, supra, staging that jurisdiction depended on “the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered,” and that the court was not.permitted “for the purpose of determining Its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.” • in Bruce v. Manchester & Keene R. R., 117 U. S. 514, 516, 6 S. Ct. 849 (29 L. Ed. 990), action was brought by Bruce, a citizen of Illinois, and Shepard, a citizen of Massachusetts, to collect interest on certain bond of the Manchester & Keene Railroad. The bill was filed in behalf of the complainants and of other like creditors, not citizens of New Hampshire, although no such creditors connected themselves with the suit. The interest unpaid did not amount to $3,000. The court dismissed the corn-plaint, because the jurisdictional amount did not appear, and followed the rule laid down in Elgin v. Marshall, supra. Speaking of the complainants, it said: “They sued for themselves and all others in like situation who might join with them, but no one saw fit to join. They were allowed to proceed alone, and the payment to them of their interest would have -been a bar to the further prosecution of the suit. So, if a decree had been rendered in their favor without others joining in the suit, either by petition or by proof before a master, or otherwise, it would have been satisfied by. the payment of the amount found due to them, and no further proceedings could thereafter be had.”- In Market Co. v. Hoffman, 101 U. S. 112, 113 (25 L. Ed. 782), some 200 persons occupying market stalls in the market of the Washington Market Company brought suit to enjoin the putting up at auction.leases of these stalls for a series of years. The court said: “While it may be true that, if Hoffman was the sole eomplainant, the amount in controversy would be insufficient to justify an appeal either by him or the company, the case is one of 206 complainants suing jointly, the decree is a single one in favor of them all, and in denial of the right claimed by the cornpany, which is of far greater value than the. sum which, by the act of Congress, is the limit below which an appeal is not allowable. It is averred under oath in thé pleadings that the sale which the company proposed to make, and the court below enjoined, would have realized to the company more than $60,000. Of this benefit the decree deprives them. It is very plain, therefore, that the appeal is one within our jurisdiction.” The pecuniary result there, whichever way the judgment went, would be greater than the necessary jurisdietional amount. It is to be noted that the court said that, if Hoffman were the sole eomplainant, the amount in controversy would be insufficient to justify an appeal either by him or by the company. That case is very much in point, and the obiter dictum of the court fits the present case, In Gibson v. Shufeldt, 122 U. S. 27, 29, 7 S. Ct. 1066, 1067 (30 L. Ed. 1083), the court, reviewing a large number of cases, discusses the question of “the matter in dispute,” and the value thereof with reference to the appellate jurisdiction of the Supreme Court, and says: “The sum or value really in dispute between the parties in the ease before this court, as shown by the whole record, is the test of its appellate jurisdiction, without regard to the collateral effect of the judgment in another suit between tlio same or other parties.” Also (page 39, 7 S. Ct. 1072) : “The solo matter in dispute, therefore, is between the defendants and each plaintiff as to the amount which the latter shall recover; and the motion to dismiss the appeal of the defendants as to all the plaintiffs, except the one whoso debt exceeds $5,000, must be granted.” In The Sydney, 139 U. S. 331, 338, 11 S. Ct. 620, 621 (35 L. Ed. 177), the court said: “The principle of the case of Elgin v. Marshall, that the sum or value really in dispute between the parties in the case before this court, as shown by the whole record, is the test of its appellate jurisdiction, without regard to the collateral effect of the judgment in another suit between the same or other parties, has since been repeatedly affirmed by this court, and that ease cited and approved.” In New England Mortgage Security Co. v. Gay, 145 U. S. 123, 130, 12 S. Ct. 815, 816 (36 L. Ed. 646), the court said: “It is well settled in this court that, when our jurisdiction depends upon the amount in controversy, it is determined by the amount involved in the particular case, and not by any contingent loss either one of the parties may sustain by the probative effect of the judgment, however certain it may be that such loss will occur.” In Walter v. Northeastern Railroad Co., 147 U. S. 370, 373, 374, 13 S. Ct. 348 (37 L. Ed. 206), objection was taken to the jurisdiction of the court below upon the ground that the matter in controversy with each of the defendants was less than the jurisdictional requisite. The court said: “Is the plaintiff entitled to join them all in a single suit in a federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2,-000? We think not. It is well settled in this court that when two or more plaintiffs, having- several interests, unite for the. convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount, and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff. * * * In short, the rule applicable to several plaintiff's having separate claims, that each must represent an amount sufficient to give the court jurisdiction, is equally applicable to several liabilities of different defendants to the same plaintiff.” In Colvin v. Jacksonville, 158 U. S. 456, 15 S. Ct. 866, 39 L. Ed. 1053, it was held that in a suit to restrain the issue of bonds by a municipal corporation the jurisdiction of the Circuit Court was determined by the -amount of the interest of the complainant, and not by the amount of the issue of bonds. In Fishback v. Western Union Telegraph Co., 161 U. S. 96, 16 S. Ct. 506, 40 L. Ed. 630, it was held that the Circuit Court of the United States had no jurisdiction of a bill to enjoin the collection of separate county taxes by separate eounty officers in the state of Arkansas against the Western Union Telegraph Company on its line in each of said counties in that state, when the amount of the tax in each one of the counties is less than the jurisdictional amount; that the various county assessments could not be aggregated to make up the jurisdictional amount; and the court ruled that the record did not show that the amount of any one of the different eounty assessments equaled the jurisdictional sum. In Edwards v. Bates County, 163 U. S. 269, 16 S. Ct. 967, 41 L. Ed. 155, it was held that the matured coupons on municipal bonds are to be treated as separable, independent promises in determining jurisdictional amount, and not as interest upon the bond. In Citizens’ Bank v. Cannon, 164 U. S. 319, 17 S. Ct. 89, 41 L. Ed. 451, it was held that jurisdiction could not be conferred on a Circuit Court of the United States by joining in one bill aga-inst distinct defendants claims no one of which reaches the jurisdictional amount. In Wheless v. St. Louis et al., 180 U. S. 379, 382, 21 S. Ct. 402, 403 (45 L. Ed. 583), owners of lots filed a bill to restrain the assessment against them of the cost and expense of improving a public street. The court held that, as neither one of the complainants would be required to pay the jurisdictional amount in respect of lots involved, there was no jurisdiction. The court said: “The ‘matter in dispute, within the meaning of the statute, is not the principle involved, Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
songer_usc1	29	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. DANNER PRESS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 16699. United States Court of Appeals Sixth Circuit. March 15, 1967. Edward C. Kaminski, Akron, Ohio, Herman E. Rabe, Buckingham, Doolittle & Burroughs, Akron, Ohio, on brief, for petitioner. Robert S. Hillman, N. L. R. B., Washington, D. C., for respondent. Before WEICK, Chief Judge, and CELEBREZZE and PECK, Circuit Judges. CELEBREZZE, Circuit Judge. Petitioner, Danner Press, Inc., (hereinafter referred to as either Petitioner or Danner Akron), seeks review of an order of the National Labor Relations Board. The Board’s decision and order are reported at 153 N.L.R.B. No. 87. The Board, adopting the findings of the Trial Examiner, found that Danner Akron violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Union concerning its grievance that Danner Akron was assigning struck work to its employees in breach of their collective bargaining contract. The Board also found that the bindery employees of Danner Akron struck in protest against Danner Akron’s refusal to bargain, and that Danner Akron violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they abandoned their strike and offered unconditionally to return to work. The record discloses the following facts: Petitioner operates a printing business as a job shop in the City of Akron, Ohio. Petitioner employs seven or eight full-time employees and eleven or twelve part-time employees. Approximately one third of Petitioner’s business is derived from Danner Press of Canton, Inc. (hereinafter referred to as Danner Canton), which operates a similar but larger job shop. Local No. 5 of the Bookbinders Union represents the binding employees of both Petitioner and Danner Canton, but in separate bargaining units; and the Union has separate collective bargaining contracts with each Company. On February 3, 1964, the Danner Canton bookbinders’ bargaining unit commenced an economic strike against Danner Canton. A few days after the strike began, both the employees of Danner Akron and Canton believed that Danner Canton was sending strikebound work to Akron for completion by Danner Akron. Consequently, on February 17, 1964, Mr. Glenn Moss, International Representative of the Bookbinders, and general employees of Danner Canton, talked to Mr. Swineford at the plant of Danner Akron. Mr. Moss testified that he told Mr. Swineford he was there on a grievance in regard to struck work being performed at Danner Akron. Mr. Swine-ford told Mr. Moss and the committee to leave as they were trespassing. Mr. Moss asked Mr. Swineford when he could get his answer on the grievance, and Mr. Swineford said “tomorrow”. Mr. Swine-ford denied that Mr. Moss asked to discuss or arrange a meeting to discuss with him negotiations concerning the performance of struck work in the Akron plant. Mr. Swineford testified that Mr. Moss asked him to shut down the bindery because they were doing struck work for the Canton plant. On February 18, 1964, a Danner Akron employee arranged a meeting with Mr. Swineford and with Mr. Moss and Mr. Thur, President of Local No. 5. Mr. Moss, Mr. Thur and several employees of Danner Canton again met with Mr. Swineford. The same views of the conversation and the same result followed as in the meeting the previous day. After this short meeting of February 18th, the bindery employees of Petitioner met with Petitioner’s President Under-man. Mr. Underman told his employees they had a contract and were obligated to do all the work or they would have to get out. Several employees told Mr. Underman they were doing struck work, and asked him why he would not meet with their Union officials. On February 19, 1964, Danner Canton employees began picketing Danner Akron. Most of Petitioner’s employees refused to cross the picket line. Later that day, and until March 16, 1964, Petitioner’s employees remained out on strike and picketed Petitioner’s plant until the Danner Canton strike was settled. Neither the International nor the Local was aware of, or took any part in the placement of the original picket line at the Danner Akron plant on the morning of February 19th. On March 16th, all the striking employees of Petitioner appeared at the plant to start their first shift. Mr. Swineford informed them they had been discharged and replaced. The evidence of struck work was also conflicting. In September, 1963, Petitioner purchased a McCain machine for their bindery. Because of the large capacity of this machine, and the heavy capital investment, Petitioner agreed to purchase the machine with the understanding that Danner Canton would send more bindery work to Petitioner. Approximately one-third of Petitioner’s bindery work during 1963 came from Danner Canton. From February 1, 1963 to March 31, 1964 Petitioner did 400 jobs for Danner Canton. Bindery work done for Danner Canton in February, 1963, totaled $861.51, in March, 1963, $7,042.41, in February, 1964, $5,966.42, and March, 1964, $2,480.52. After the strike began at Danner Canton on February 3rd, the bindery operated only for one shift instead of the normal three shifts. The bindery was not operating at full capacity. On January 30, 1964, Danner Canton received material from Allied Graphic Arts to print and bind a spring and summer catalogue. The proofs were scheduled to go out on January 30th, but did not go out until February 3rd. The proofs came back on February 5th and the job went to press on February 7th. Binding was scheduled to start February 10th, Since the bindery work could not be done in time, the overflow went to Danner Akron. Approximately 1,300,000 pieces were run in Canton and approximately 300,000 pieces were run in Akron. Mr. Hoffman, Customer Service Representative of Danner Canton, who testified to the above facts, was asked the following questions by the Trial Examiner: “Q. With only one bindery shift working and with orders on hand which required prompt attention, was there any overflow work caused by this strike which resulted in your shipping work to Akron to be done ? “A. On any given job or all jobs? “Q. On any job? “A. Yes.” Immediately the Customer Service Representative was asked by Petitioner’s counsel on re-direct examination: “Q. Mr. Hoffman, with regard to these orders that you had said were to be processed for Canton after February 3rd during the time that the strike was in progress, was the work that was sent to Akron in the nature of overflow work as you have testified? “A. Yes, it was. “Q. And are you able to say whether or not this work that went to Akron on the Atkins catalogue job would probably have gone there had there been no strike in the plant at Canton? “A. Yes. “Q. —Do you know of your own knowledge, whether the work which was sent to Akron from Canton, which I believe you characterized as overflow, was sent to Akron because of the strike that was in effect in the bindery at Canton ? “A. No, I do not.” Early in the proceeding before the Trial Examiner, a lengthy discussion developed between counsel and the Trial Examiner as to the nature of the charge against the Petitioner. The General Counsel for the National Labor Relations Board finally took the position they were trying the case on the theory that the Petitioner failed to bargain on a matter which had not been the subject of previous bargaining, rather than on the theory that the Petitioner failed to negotiate a grievance. The nature of the unfair labor practice charge was crystalized in the following colloquy between the Trial Examiner and counsel: “Trial Examiner: Now tell me are you definitely ruling this projected theory concerning which I had heard comment from you earlier, namely that by the assignment of struck work to employees that the Respondent was violating the provisions of the contract that it would not require the employees to violate their constitution or bylaws? “Mr. Szabo: That is correct. We are not. “Trial Examiner: You are not pursuing it. So that this case may proceed as though this may never have been said by you ?” The Trial Examiner then found that Petitioner violated Section 8(a) (5) and (1) of the Act by refusing to accept and negotiate the grievance of struck work, and that a finding that Petitioner assigned struck work to its employees was not essential to this holding. The Trial Examiner further found that the employees struck in protest of this unfair labor practice, and that the Petitioner violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they offered to return to work. The pertinent provisions of the collective bargaining contract between Danner Akron and the Union required the parties “(1) To appoint a Joint Standing Committee for the Conciliation, consisting of two representatives appointed by the Employer, and two representatives appointed by the Union, to which shall be referred all questions which may arise as to the construction to be placed on any section of this Contract, except as provided otherwise herein or alleged violations thereof, which cannot be settled otherwise herein, and such Joint Standing Committee shall meet when any question of difference shall have been referred to it for decision by the executive officers of either party to this Agreement. “(2) To present immediately in writing any grievance to the Joint Standing Committee for conciliation. The Committee shall meet to consider any grievance within 48 hours after notice in writing has been filed by either party to the other party. Differences as to scales of wages shall not be considered to be grievances. If an understanding cannot be reached within ten full business days after the grievance has been presented, then the settlement of the grievance shall be left to a Board of Arbitration.” The bargaining contract provided for certain procedures by which grievances were to be presented and settled. The record discloses these procedures were not followed. The meetings on February 17th and 18th with Danner Akron included the International Representative of the Union, the Local President of the Union and four employees of Danner Canton. No employees of Danner Akron were present at either meeting. No written grievance was presented to Danner Akron. The Board now takes the position that Petitioner’s contention that the Union failed to file its grievance in accordance with the provisions of their collective bargaining agreement is foreclosed by the express declaration of Petitioner’s counsel that it was not defending the alleged refusal to bargain on this ground. The position of waiver is not well taken. This statement was made prior to the clarification sought by Petitioner’s counsel as to exactly what issues were being tried. Furthermore, this contention should not be available to the General Counsel when the Trial Examiner found that Petitioner refused to negotiate a grievance after the General Counsel said that issue was not in the case. The confusion, which still persists, as to the nature of the Board’s charge would not have arisen had the provisions of the contract been followed. The parties agreed to an exclusive method of procedure for the presentation of grievances and unless the aggrieved party can show a waiver of such contract procedures, no relief can be obtained where that procedure was not followed. If this procedure had been followed, no question would have arisen as to the nature of the Union’s claim, and the matter may have been settled, or ultimately resolved by the intended and preferential method of arbitration. What was said by the Board in W. L. Mead, Inc., 113 N.L.R.B. 1040 (1955) and approved by the Supreme Court in Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1961), as to the duty to arbitrate, is equally applicable here: “Every encouragement should be given to the making and enforcement of such clauses. But, if employees may effectively call upon the Board to protect them when they arbitrarily breach clear and binding arbitration clauses of this kind, and turn to the use of economic force for the settlement of grievances rather than to the contractual, quasi judicial procedure, the effect will be to discourage the making of, and the adherence to, contractual arbitration procedures. To hold that a strike in furtherance of such a material breach of a clear and binding contractual arbitration clause is to be protected by this Board would be contrary to the labor policy embodied in the National Labor Relations Act as interpreted by the Courts of Appeals and the Supreme Court.” We can see no difference between the failure to abide by the contractual requirement to arbitrate and the contractual requirement to follow certain procedures in the presentation of a grievance. See also Midwest Metallic Products, Inc., 121 N.L.R.B. 1317 (1958); and Sohio Chemical Co., 141 N.L.R.B. 810 (1963). While this may appear to be a harsh rule, it is necessary to maintain the integrity of the contract and to provide a uniform and orderly method for settlement of grievances. The Trial Examiner found that when the picketing of Danner Akron began by Danner Canton employees on February 19th, the failure of Danner Akron employees to enter the plant and work was not due to their employer’s refusal to bargain but out of sympathy with Danner Canton’s employees. Thus the initial walkout and the refusal to cross the picket line was found by the Trial Examiner not to be in protest of the Petitioner’s refusal to entertain a grievance. The Trial Examiner then found that after February 19th, the Danner Akron employees continued to strike because Petitioner refused to meet and negotiate their grievance of struck work, and they then became unfair labor practice strikers. If the employees of Petitioner were not unfair labor practice strikers when they refused to return to work, we do not see how a change in attitude or motive could cure the defect of their failure to follow the requirements of their contract. We find no evidence in the record that a grievance was filed in accordance with the provisions of the contract. Danner Akron had no obligation to discuss with the employees of Danner Canton a claimed grievance pertaining to the employees of Danner Akron. Nor was petitioner obligated by its contract to accept a grievance from the Danner Canton Union committee. Since the employees did not follow the grievance procedure, and did not present a grievance in writing, their use of economic force could not be protected under the Act as an unfair labor practice strike. Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., supra. It follows that the Company did not commit an unfair labor practice in hiring replacements for the striking employees. The Order of the Board is set aside and enforcement is denied. . International Brotherhood of Bookbinders, Akron Bindery Workers Union, Local No. 5, AFL-CIO. . While there are ties of management and ownership between the two Companies, the two Companies do not constitute a single employer for purposes of the Act. 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_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Dee Bonnie MARLOWE, Plaintiff-Appellant, v. Bruno BOTTARELLI, et al., Defendants-Appellees. No. 90-2858. United States Court of Appeals, Seventh Circuit. Argued May 15, 1991. Decided Aug. 7, 1991. Rehearing and Rehearing In Banc Denied Sept. 10, 1991. Scott A. Mayer, Arnold & Kadjan, Chicago, Ill., for plaintiff-appellant. Stephen Novack, Kenneth S. Schlesinger, Novack & Macey, Chicago, Ill., for defendants-appellees. Gwendolyn Young Reams, Vincent Blackwood, E.E.O.C., Donald R. Livingston, Paul D. Ramshaw, Jennifer S. Gold-stein (argued), E.E.O.C., Washington, D.C., for amicus curiae. Before BAUER, Chief Judge, and COFFEY and FLAUM, Circuit Judges. FLAUM, Circuit Judge. This employment discrimination suit presents a unique question regarding the interpretation of a worksharing agreement between the Illinois Department of Human Resources (IDHR) and the Equal Opportunity Employment Commission (EEOC). Under the district court’s interpretation of the agreement, plaintiff Marlowe’s discrimination charge was untimely under federal law. Marlowe, the IDHR, and the EEOC take a different view; according to their reading, Marlowe’s complaint was, in fact, timely. We agree with the latter view of the agreement and reverse. Further, we hold below that the workshare agreement between the two agencies is self-executing, resolving a question upon which we reserved judgment in Sofferin v. American Airlines Inc., 923 F.2d 552 (7th Cir.1991). I. On March 28, 1986, Dee Bonnie Marlowe was discharged by her employer, Bruno Bottarelli. Two hundred and ninety-nine days later, on January 21, 1987, she filed employment discrimination charges with the IDHR against Bottarelli and his company, Marquette Properties, alleging that Bottarelli sexually harassed her, and that this harassment created a hostile work environment which led to her discharge. On the same day, Marlowe filed identical charges with the Equal Opportunity Employment Commission (EEOC). This dual filing, we shall see, created a good deal of confusion. The confusion stems from the existence of a so-called “workshare agreement” between the IDHR and EEOC, which apportions initial jurisdiction over discrimination complaints between the two agencies. (We have extensively discussed the operation of the workshare agreement between the IDHR and EEOC in Hong v. Children’s Memorial Hospital, 936 F.2d 967 (7th Cir.1991) and Sofferin, supra, and will presume the reader’s familiarity with these opinions). Under the agreement, either the IDHR or the EEOC should have been vested with initial jurisdiction to review Marlowe’s complaint. Nevertheless, both agencies proceeded to process her charges. Although untimely under state law (the state statute of limitations provides that discrimination charges must be filed within 180 days of the alleged discriminatory act, see Ill.Admin.Code tit. 56, § 2520.310), the IDHR began processing Marlowe’s complaint and did not officially terminate it on grounds of untimeliness until May 29,1987. The language of the workshare agreement seemingly supports the IDHR’s decision to assume jurisdiction over Marlowe’s charges. Paragraph 7(d) states that the IDHR shall have initial jurisdiction over complaints filed on the same day with both the state and the EEOC. If the IDHR was correct in assuming jurisdiction over Marlowe’s complaint pursuant to the workshare agreement, then it could not be deemed timely filed with the EEOC. Under Title VII, Marlowe could not file with the EEOC until she filed with the state and either (1) 60 days elapsed or (2) the state terminated its interest in her complaint, whichever came first. See 42 U.S.C. § 2000e-5(c). In her case, the 60 day period lapsed first on March 21, but by that time, the 300-day federal statute of limitations had already run. While all this was happening, the EEOC was acting upon Marlowe’s complaint as well. The IDHR’s designated agent in the EEOC, Renadar Curtis, was responsible for reviewing complaints received by the EEOC and determining whether the state wished to process the complaint or whether it chose to waive its initial processing rights and allow the EEOC to assume jurisdiction. Curtis determined that under the workshare agreement, Marlowe’s complaint fell within the initial jurisdiction of the EEOC. She believed that according to the agreement, charges that were untimely under state law were deemed waived and terminated by the state and slated for processing by the EEOC. She thus proceeded to complete the paperwork that terminated the state’s interest in Marlowe’s complaint and initiated the EEOC’s investigation into plaintiff’s charges. Shortly after filing with the EEOC, Marlowe received a right-to-sue letter from the agency. She filed suit in district court, but the district court dismissed her suit on defendants’ motion for summary judgment on the ground that her EEOC complaint was untimely. The court read paragraph 7(d) of the workshare agreement to vest jurisdiction over Marlowe’s complaint with the IDHR, not the EEOC. Under this reading, the IDHR did not terminate Marlowe’s complaint until May 1987. And, of course, the 60-day state deferral period did not run until late March 1987. Either way, Marlowe was not authorized under Title VII to file charges with the Commission until long after the 300-day federal limitations period had expired on January 22, 1987. Her EEOC complaint, the court ruled, was therefore untimely. The fact that the IDHR agent at the EEOC read the agreement differently was of little moment, concluded the court, because that reading contravened the agreement’s plain language. Marlowe then filed a motion for reconsideration. With her motion, she submitted the declarations of Jeffrey Drager, manager of the Charge Processing Division of the IDHR, and Marietta Morgan, State and Local Coordinator for the EEOC’s Chicago District Office. Both participated in the negotiations that led to the execution of the workshare agreement and were responsible for supervising the administration of the agreement in their respective agencies. The two officials averred that the parties to the agreement did not intend charges untimely under state law to be reserved to the IDHR for initial processing; rather, Morgan and Drager explained, they intended such charges to be the sole province of the EEOC. In support of their position, the declarants referenced an EEOC regulation in force at the time of the signing of the agreement. See 29 C.F.R. § 1601.13(a)(3) (1986). The regulation provided that complaints untimely under state law need not be filed first with the state; according to the regulation, such complaints were deemed timely filed with the EEOC upon receipt, without any other action on the part of the state to terminate its interest in the charges. Morgan and Drag-er both testified that the two agencies executed the workshare agreement with the EEOC regulation in mind; it was understood that the workshare agreement was to be read and applied consistently with the regulation. Drager conceded that the IDHR’s continued processing of Marlowe’s untimely complaint conflicted with this understanding, but contended that the state’s actions were the result of a clerical error and should be given no legal effect. After examining the declarations, the district court granted Marlowe’s motion for reconsideration, stating that the declarations constituted “strong evidence of [the parties’ ] intention[s] as to how the agreement is to operate,” and that the interests of justice thus required reconsideration of its decision to grant the defendants summary judgment. See Memorandum Opinion, October 6, 1989, at 8. In a subsequent memorandum opinion following defendant’s second motion for summary judgment, the district court again held plaintiff’s complaint untimely under federal law, for essentially the same reasons that it had set out in its first opinion. The court observed that while the intent of the parties appeared to be what Drager and Morgan said it was, the better course was to give legal effect to the plain language of the agreement. It therefore dismissed plaintiff’s complaint as untimely. Marlowe now appeals. She contends — as does the Commission in an amicus brief— that we ought to give effect to the intent of the state and the EEOC in executing the agreement and hold that her complaint was timely filed with the EEOC because the Commission properly had jurisdiction under the workshare agreement to process charges that were untimely under Illinois’ shorter limitations period. We agree with Marlowe and the Commission. II. Paragraph 7(d) of the workshare agreement states that charges filed on the same day with both the IDHR and the EEOC are to be processed initially by the state. The question before us is whether, as Marlowe, the state, and the EEOC contend, the agreement should be read to effectuate the apparent intent of the contracting parties; that is, whether it should be read to include what amounts to an unwritten clause providing that the state waives initial jurisdiction over all charges untimely under state law. In a nutshell, Marlowe and Bottarelli have presented us with two paradigmatic interpretive arguments, one championing the drafters’ intent and the other heralding the text's “plain language.” The EEOC also presents us with a third option. It argues that rather than conclusively interpret the workshare agreement ourselves, we should simply “defer” to its interpretation of the agreement. The courts, the Commission urges, “should show great deference to an agency’s interpretation of its own internal directives.” Brief at 13 (citing EEOC v. Techalloy Maryland Inc., 894 F.2d 676, 678-79 (4th Cir.1990)). While we agree with the EEOC’s proposed result, and while we agree in the abstract with its proposition regarding the nature and scope of our review, we do not believe that this is a case where the correct result is dictated by our deference to an agency’s interpretive gloss. A discussion of why deference is inappropriate is, however, instructive in reaching our result. The thrust of our jurisprudence counseling deference to administrative agency interpretations of statutes is that where Congress’ intent in enacting a particular provision of a statute is difficult to discern, we give deference to the views of the agency charged with administering the statute, so long as the agency’s suggested interpretation is reasonable. See, e.g., Chevron Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Wisconsin Electric Power Co. v. Reilly, 893 F.2d 901, 906-07 (7th Cir.1990). Similarly, when the question at hand involves an administrative agency’s interpretation of its own regulation, and the meaning of the regulation is in doubt, the courts will defer to the agency’s interpretation if that interpretation is reasonable. See, e.g., Martin v. OSHRC, — U.S. -, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 1323-24, 28 L.Ed.2d 625 (1971); Udall v. Tollman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (1965); Reilly, 893 F.2d at 907. In both circumstances, deference to an agency’s interpretation is appropriate only because the intent of the drafter or drafters — whether Congress or the agency itself — is in doubt. See Mead Corp. v. Tilley, 490 U.S. 714, 109 S.Ct. 2156, 2162, 104 L.Ed.2d 796 (1989); Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82; National Coalition Against the Misuse of Pesticides v. Thomas, 809 F.2d 875, 881-82 (D.C.Cir.1987). Intent is, of course, at the heart of the judicial inquiry because the courts endeavor to give effect to the designs of Congress and the agencies to which the legislature has delegated authority. See Griffin v. Oceanic Contractors Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982) (“Our task is to give effect to the will of Congress”); United States v. American Trucking Assns. Inc., 310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940) (“[T]he function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.”). In discerning intent, courts traditionally focus on the language of statutes and regulations because we presume that legislatures and agencies mean what they say; most of the time, the “plain language” of a statute or regulation will be the best indicator of the enacting body’s will, see, e.g., West Virginia University Hospitals Inc. v. Casey, — U.S. -, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991); American Trucking, 310 U.S. at 543, 60 S.Ct. at 1063-64, and thus, only when the text is silent or ambiguous will we defer to an administrative agency’s interpretation. In the case before us, there is no need to defer in the sense that the EEOC suggests because the predicate condition to the application of deference — ambiguity as to the drafters’ intent — is absent. The district court suggested, and we agree, that the two agencies intended to waive the state deferral period with respect to untimely state claims. See Memorandum Opinion, July 12, 1989, at 10 (to honor the plain language of the agreement “lead[s] to absurd results and fail[s] to effectuate [its] general intended purpose”); Memorandum Opinion, October 6, 1989, at 8 (“There is no doubt that the parties’ understanding of the Work Sharing Agreement is strong evidence of their intention as to how the agreement is to operate.”). What makes this case perplexing is that this intent is in tension with the language of the agreement ostensibly designed to codify it. How, then, do we resolve a conflict between “plain language” and what we might call “plain intent”? The general rule is that where a text is unambiguous, its plain language controls, except “in the rare case where the application of the statute as written will produce a result ‘demonstrably at odds with the intentions of the drafters.’” Demarest v. Manspeaker, — U.S. -, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991) (quoting Griffin, 458 U.S. at 571, 102 S.Ct. at 3250); see also Consumer Products Safety Commission v. GTE Sylvania, 447 U.S. 102, 109, 100 S.Ct. 2051, 2056-57, 64 L.Ed.2d 766 (1980); Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166, 14 L.Ed.2d 75 (1965). In the rare case where literal application of a text would lead to absurd results or thwart the obvious intentions of its drafters, “those intentions must be controlling.” Griffin, 458 U.S. at 571, 102 S.Ct. at 3250; see also Brown, 380 U.S. at 571, 85 S.Ct. at 1166. American Trucking, 310 U.S. at 543, 60 S.Ct. at 1063-64 (collecting cases), Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S.Ct. 368, 371-72, 85 L.Ed. 303 (1941). This, in our view, is the exceptional case. The obvious intent of the drafters of the workshare agreement was to effect state waiver of complaints untimely under state law and delegate initial jurisdiction over such complaints to the Commission. Where the intent of an agency in promulgating a regulation or agreement is clear, and where, as here, that intent is not in tension with the agency’s organic statute or regulations promulgated pursuant to that statute, we believe that the courts must give effect to the agency’s purposes. To put it differently, the workshare agreement between the IDHR and EEOC is essentially a contract apportioning jurisdiction between the two agencies. As we know, “the overriding purpose in construing a contract is to give effect to the mutual intent of the parties at the time the contract was made; [ ] while the language of the contract is normally the best evidence of that intent, a court can properly disregard even unambiguous language when it is convinced that the parties meant something different from what they said.” White v. Roughton, 689 F.2d 118, 120 (7th Cir.1982); see also Restatement (Second) of Contracts, § 202, comment c, § 212 comment b (1981). We have done exactly that in interpreting consent decrees — contracts of a sort — that say one thing yet seem to mean another. See Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1013 (7th Cir.1984) (“‘it is permissible to construe unambiguous language where the construction is necessary to determine the intended rather than the literal meaning of the decree.’”) (quoting Roughton, 689 F.2d at 120). We also note that the Fourth Circuit has reasoned in similar fashion from contract law in interpreting a workshare agreement. See EEOC v. Techalloy Maryland Inc., 894 F.2d 676, 679 (4th Cir.1990) (“[B]oth the EEOC and [the state agency] agree that this is the proper interpretation of the [workshare] agreement. To adopt [the employer’s] position would thus contravene one of the most basic tenets of contract law, that a contract should be interpreted to effectuate the intent of the parties.”). Defendants argue that the declarations of Morgan and Drager, both of whom were involved in negotiating, and are presently involved in administering the agreement, “smack of hindsight and artificiality” and therefore ought not to be credited as evidence of the agencies’ intentions at the time of the agreement’s execution. This argument cannot be lightly dismissed. Defendants are correct in suggesting that, standing alone, the post-hoc intentions of the IDHR and the EEOC are insufficient to work an effective amendment of the agreement. Cf. Burlington Truck Lines Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245-46, 9 L.Ed.2d 207 (1962) (“The courts may not accept appellate counsel’s post-hoc rationalizations for agency action”); see also Martin, 111 S.Ct. at 1179. Here, however, we are presented with considerably more than mere post-hoc arguments. We note first that the district court appears to have found the declarations of Morgan and Drager credible; it accepted them as evidence of the parties’ intentions at the time of the agreements’ execution and never questioned their “hindsight” or “artificiality.” See Memorandum Opinion, October 6, 1989, at 8 (“There is no doubt that the parties’ understanding of the Work Sharing Agreement is strong evidence of their intention as to how the agreement is to operate.”). We defer to this implicit credibility judgment. More importantly, Marlowe and the EEOC have also presented extrinsic evidence that lends powerful support to their view of the intent behind the workshare agreement. An EEOC regulation in effect at the time of the agreement’s execution, see 29 C.F.R. § 1601.13(a)(3) (1986), provided that charges that were untimely under state law could be filed solely with the EEOC. A complaint untimely under state law would be deemed timely filed with the EEOC if submitted within the 300 day federal limitations period, regardless of whether the state took independent action to terminate its interest in the charge. It is fair to presume that neither the EEOC nor the state intended to enter into a workshare agreement that conflicted with the EEOC regulation; this, of course, is nothing more than a variation of the rule that whenever possible courts construe statutes and regulations in pari materia. Cf. 2A C. Sands, Sutherland Statutory Construction § 51.02 (4th ed. 1984) (“SUTHERLAND”) (“It is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter. In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes.”); Fallon v. State of Illinois, 882 F.2d 1206, 1214 (7th Cir.1989); Davis v. Barber, 853 F.2d 1418, 1425 (7th Cir.1988). The EEOC regulation is thus persuasive evidence of the parties’ intentions at the time of the agreement’s execution. Defendants retort in their brief that the EEOC regulation was unlawful, and therefore should play no role in our analysis. There is support for defendants’ attack on the regulation, see EEOC v. Commercial Office Prods., 803 F.2d 581, 586 (10th Cir.1986), rev’d on oth er grounds, 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988); supra note 1, and indeed, the regulation has since been repealed, but all this is by the by. However unlawful it may have been, the regulation was in force when the parties adopted their agreement, and is therefore probative of their intent at the time. Cf. SUTHERLAND, § 51.04 (“An act relating to the same subject matter need not be a valid and existing statute to be construed with an ambiguous act in order to help determine its meaning.”). We conclude that the workshare agreement vested initial jurisdiction over Marlowe’s complaint in the Commission. The state’s continued processing of Marlowe’s complaint was thus erroneous. This is not, however, the end of our inquiry. Although the EEOC received Marlowe’s complaint on day 299, Curtis, the official in charge of administering the workshare agreement, did not complete the paperwork terminating the state’s interest in Marlowe’s charges until January 26, 1987, day 304. Defendants contend that even if we read the workshare agreement as a waiver of the state’s interest in Marlowe’s charge, that waiver was not effected in time to allow for timely filing with the EEOC. We find this argument unpersuasive. On its face, the workshare agreement appears to be self-executing — no discretionary action on the part of the IDHR’s agent in the EEOC need be taken to effectuate the waiver provisions of the agreement. The agreement directs that the IDHR’s agent will review charges filed with the EEOC “to determine whether IDHR has agreed to terminate its activity respecting the charge ... i.e., whether the charge falls within those classes of charges affected by the Work Sharing Agreement waiver provisions.” (emphasis added). Other paragraphs in the agreement (7 and 8) set out those categories of charges that “will [be] processed]” by the IDHR, and those that “will [be] processed]” by the Commission. Those paragraphs are followed by this statement: In order to avoid delay on those charges reserved to EEOC ... IDHR hereby waives its exclusive right to process those charges for 60 days, as provided in Section 706(c) of Title VII ... so that EEOC can take immediate action on such charges, (emphasis added). The language of the agreement indicates that the state’s decision to waive its review prerogative took place during the drafting and execution of the agreement, and that the actions of the IDHR’s agent in administering the agreement were no more than icing on an already baked cake. Once Marlowe’s complaint was filed with the EEOC, the agreement worked “instantaneous ‘constructive termination’” of the state’s jurisdiction over her charges. Griffin v. Air Prods, and Chemicals, Inc., 883 F.2d 940, 943 (11th Cir.1989). This is the conclusion of three other courts of appeals as well. See Trevino-Barton v. Pittsburgh Natl. Bank, 919 F.2d 874, 879 (3rd Cir.1990); EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 678-79 (4th Cir.1990); Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1478-80 (9th Cir.1989). III. We conclude that Marlowe’s complaint was timely filed with the EEOC on January 21, 1987, 299 days after her allegedly unlawful discharge. The decision of the district court granting summary judgment to the defendants is therefore reversed and this case remanded for further proceedings consistent with this opinion. . To the reader unfamiliar with the terrain of Title VII, this may seem strange. Why must the state actually terminate its interest in a plaintiffs complaint if the state statute of limitations has already run? Should not a plaintiff be allowed to bypass the state agency and file directly with the EEOC in such a case? No. The courts have interpreted Title VII to require that a plaintiff file with the state agency even if the state statute of limitations has run. See EEOC v. Commercial Office Prods., 486 U.S. 107, 122-24, 108 S.Ct. 1666, 1675-76, 100 L.Ed.2d 96 (1988); Mohasco Corp. v. Silver, 447 U.S. 807, 816-18, 821, 100 S.Ct. 2486, 2494-95, 65 L.Ed.2d 532 (1980); EEOC v. Commercial Office Prods., 803 F.2d 581, 586 (10th Cir.1986), rev'd on other grounds, 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988). The reason for this requirement is twofold. First, the express language of Title VII mandates that the EEOC may not assume jurisdiction over a discrimination complaint until it has first been filed with the state agency and either sixty days have transpired or the state has terminated the complaint. This language seemingly affords no room for an interpretation that would bypass the state deferral mechanism when complaints are untimely under state law. Second, the alternative — allowing direct filing with the Commission without an intervening act of state termination — would “embroil the EEOC in complicated issues of state law.” Commercial Office Prods., 486 U.S. at 124, 108 S.Ct. at 1676. In such a case, the EEOC would be compelled to decide whether the state statute of limitations has indeed run before accepting a complaint. And to do so, it would have to determine whether the limitations period was jurisdictional or nonjurisdic-tional, and if it was nonjurisdictional, whether it was waived or equitably tolled. "The EEOC has neither the time nor the expertise to make such determinations under the varying laws of the many deferral states ...” Id. It is for this reason that the EEOC has entered into workshare agreements with state agencies. Workshare agreements contain the states’ express waiver and termination of their jurisdictional prerogative and therefore avoid the problems discussed above. The question before us is whether the agreement between the IDHR and EEOC provides for an appropriate end-run around Title VII’s filing requirements with respect to Marlowe’s complaint. . To ensure that they are afforded an opportunity to file with the EEOC in deferral states, plaintiffs are advised to submit their complaints to the appropriate state agency within 240 days of the alleged discriminatory act; by doing so, the statutory sixty day waiting period will necessarily lapse before the running of the 300-day federal statute of limitations and allow for timely filing with the EEOC. See Mohasco, 447 U.S. at 814, n. 16, 100 S.Ct. at 2491, n. 16; Commercial Office Products, 486 U.S. at 111, 108 S.Ct. at 1668-69. Marlowe did not follow this advice, and filed with both agencies on day 299; she is thus dependent on the workshare agreement to terminate the state's interest in her complaint so as to allow for timely filing with the EEOC. . The relevant paragraph of the agreement states that the IDHR will process "[cjharges filed with the IDHR and EEOC on the same day by a charging party.” . We note that the IDHR and the EEOC have since the initiation of this suit amended the workshare agreement so that its express terms reflects this intent. . There are, of course, arguments to be made that the affidavits of Drager and Morgan are not sufficiently compelling indications of the intent of the state and the EEOC in executing the workshare agreement. We treat these arguments infra at 813-814. . Defendants put great stock in the fact that the state processed Marlowe's complaint in contravention of our reading of the intent behind the agreement. They insist that the state’s actions are highly probative of the agreement’s actual meaning. It is certainly true that actions often speak louder than words, but not in this case. As between the expressed intentions of state and federal policymakers — those " 'charged with the responsibility of setting [the agreement’s] machinery in motion, of making [its] parts work efficiently and smoothly while they are yet untried and new,’" Udall v. Tallman, 380 U.S. at 16, 85 S.Ct. at 801 (citation omitted) — and the actions of their subordinates, we put considerably greater stock in the former. Question: What is the total number of appellants in the case? Answer with a number. Answer:
sc_issuearea	I	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. SUROWITZ v. HILTON HOTELS CORP. et al. No. 161. Argued January 20, 1966. Decided March 7, 1966. Richard F. Watt argued the cause for petitioner. With him on the brief were Sidney M. Davis, Walter J. Rockier and Lionel G. Gross. Samuel W. Block argued the cause for respondents. On the brief for Hilton Hotels Corp. were Leslie Hodson, Don H. Reuben and Lawrence Gunnels. With Mr. Block on the brief for the individual respondents were Albert E. Jenner, Jr., Keith F. Bode, William J. Friedman and Stanley R. Zax. Mr. Justice Black delivered the opinion of the Court. Petitioner, Dora Surowitz, a stockholder in Hilton Hotels Corporation, brought this action in a United States District Court on behalf of herself and other stockholders charging that the officers and directors of the corporation had defrauded it of several million dollars by illegal devices and schemes designed to cheat the corporation and enrich the individual defendants. The acts charged, if true, would constitute frauds of the grossest kind against the corporation, and would be in violation of the Securities Act of 1933, the Securities Exchange Act of 1934, and the Delaware General Corporation Law. Summarily stated, the detailed complaint, which takes up over 60 printed pages, charges first that defendants conceived and carried out a deceptive plan under which the Hilton Hotels Corporation through a formal “offer” mailed to all the stockholders, purchased from them some 300,000 shares of its outstanding common stock, that these defendants manipulated the stock’s market price to an artificially high level and then at this inflated price sold some 100,000 shares of their own stock to the corporation, and that the effect of this offer and purchase was to reduce the corporation’s working capital more than $8,000,000 at a time when its financial condition was weak, and the funds were badly needed to run the corporation’s business. The second deceptive scheme charged in the complaint was that the same defendants, all of whom were stockholders of the Hilton Credit Corporation, caused the Hilton Hotels Corporation to 'purchase, also at an artificially high price, more than a million shares of Hilton Credit Corporation stock, paying about $3,441,000 for it, of which over $2,000,000 was personally received by the defendants. The complaint was signed by counsel for Mrs. Surowitz in compliance with Rule 11 of the Federal Rules of Civil Procedure which provides that “The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.” Also pursuant to Rule 23 (b) of the Federal Rules, the complaint was verified by Mrs. Surowitz, the petitioner, who stated that some of the allegations in the complaint were true and that she “on information and belief” thought that all the other allegations were true. So far as the language of the complaint and of Mrs. Surowitz’s verification was concerned, both were in strict compliance with the provisions of Rule 23 (b) which states that a shareholder’s complaint in a secondary action must contain certain averments and be verified by the plaintiff. Notwithstanding the sufficiency of the complaint and verification under Rule 23 (b), however, the court, without requiring defendants to file an answer and over petitioner’s protest, granted defendants’ motion to require Mrs. Surowitz to submit herself to an oral examination by the defendants’ counsel. In this examination Mrs. Surowitz showed in her answers to questions that she did not understand the complaint at all, that she could not explain the statements made in the complaint, that she had a very small degree of knowledge as to what the lawsuit was about, that she- did not know any of the defendants by name, that she did not know the nature of their alleged misconduct, and in fact that in signing the verification she had merely relied on what her son-in-law had explained to her about the facts in the case. On the basis of this examination, defendants moved to dismiss the complaint, alleging that “1. It is a sham pleading, and 2. Plaintiff, Dora Surowitz, is not a proper party plaintiff . . . .” In response, Mrs. Surowitz’s lawyer, in an effort to cure whatever infirmity the court might possibly find in Mrs. Surowitz’s verification in light of her deposition, filed two affidavits which shed much additional light on an extensive investigation which had preceded the filing of the complaint. Despite these affidavits the District Judge dismissed the case holding that Mrs. Surowitz’s affidavit was “false,” that being wholly false it was a nullity, that being a nullity it was as though no affidavit had been made in compliance with Rule 23, that being false the affidavit was a “sham” and Rule 23 (b) required that he dismiss her case, and he did so, “with prejudice.” The Court of Appeals affirmed the District Court’s dismissal, saying in part: “We can only conclude, as did the court below, that plaintiff’s verification of the complaint was false because she swore to the verity of alleged facts of which she was wholly ignorant.” 342 F. 2d, at 606. The Court of Appeals reached its conclusion that the case must be dismissed under Rule 23 (b) and Rule 41 (b) despite the fact that the charges made against the defendants were viewed as very serious and grave charges of fraud and that “many of the material allegations of the complaint are obviously true and cannot be refuted.” 342 F. 2d, at 607. We cannot agree with either of the courts below and reverse their judgments. We do not find it necessary in reversing, however, to consider all the numerous arguments made by respondents based on the origin, history and utility of Rule 23, and of derivative causes of action and class suits. No matter how much weight we give to the function of the Rule and of class action proceedings in protecting corporate management against so-called “nuisance” or “strike suits,” we hold that the Rule cannot justify dismissal of this case on the record shown here. At the time the District Court dismissed and the Court of Appeals approved, there were pending before those courts not merely the complaint, the verified statements by counsel and by Mrs. Surowitz, and the deposition of Mrs. Surowitz, but, as noted above, two affidavits, one signed by Mrs. Surowitz’s attorney in this case, Mr. Walter J. Rockier, and the other signed by her son-in-law, Mr. Irving Brilliant, had been submitted in response to the defendants’ motion that the complaint be dismissed. These affidavits, as well as Mrs. Surowitz’s deposition, are a part of the record before us here and we shall now state the facts as they are illuminated by these affidavits. Mrs. Surowitz, the plaintiff and petitioner here, is a Polish immigrant with a very limited English vocabulary and practically no formal education. For many years she has worked as a seamstress in New York where by reason of frugality she saved enough money to buy some thousands of dollars worth of stocks. She was of course not' able to select stocks for herself with any degree of assurance of their value. Under these circumstances she had to receive advice and counsel and quite naturally she went to her son-in-law, Irving Bril-, liant. Mr. Brilliant had graduated from the Harvard Law School, possessed a master’s degree in economics from Columbia University, was a professional investment advisor, and in addition to his degrees and his financial acumen, he wore a Phi Beta Kappa key. In 1957, six years before this litigation began, he bought some stock for his mother-in-law in the Hilton Hotels Corporation, paying a little more than $2,000 of her own money for it. He evidently had confidence in that corporation because by 1960 he had purchased for his wife, his deceased mother’s estate, a trust fund created for his children, and Mrs. Surowitz some 2,350 shares of the corporation’s common stock, at a cost of about $45,000 in addition to one of the corporation’s $10,000 debentures. About December 1962, Mrs. Surowitz received through the mails a notice from the Hilton Hotels Corporation announcing its plan to purchase a large amount of its own stock. Because she wanted it explained to her, she took the notice to Mr. Brilliant. Apparently disturbed by it, he straightway set out to make an investigation. Shortly thereafter he went to Chicago, Illinois, where Hilton Hotels has its home office and talked the matter over with Mr. Rockier. Mr. Brilliant and Mr. Rockier had been friends for many years, apparently ever since both of them served as a part of the legal staff representing the United States in the Nuremberg trials. The two decided to investigate further, and for a number of months both pursued whatever avenues of information that were open to them. By August of 1963 on the basis of their investigation, both of them had reached the conclusion that the time had come to do something about the matter. In the meantime the value of the corporation’s stock had declined steadily, and in August the corporation failed to pay its usual dividend. In October, while a complaint was being prepared charging defendants with fraud and multiple violations of the federal securities acts and state law, Mr. Rockier met with defendants’ lawyers. This conference, instead of producing an understanding, merely provided Mr. Brilliant and Mr. Rockier with information, not previously available to them, which increased their grave suspicions about the corporation’s stock purchase and its management. For instance it was learned at this meeting that at the time of the stock purchase the president and chairman of the board of Hilton Hotels Corporation had purchased for an unusually high price over 100,000 shares of the corporation’s stock from several trusts established by a vice president and director of the corporation. Finally, in December, or almost exactly one year after the corporation had submitted its questionable offer to purchase stock from its shareholders, this complaint was filed charging the defendants with creating and participating in a fraudulent scheme which had taken millions of dollars out of the corporation’s treasury and transferred the money to the defendants’ pockets. Soon after these investigations began Rockier prepared a letter for Mrs. Surowitz to send to the corporation protesting the alleged fraudulent scheme. Mr. Brilliant, her son-in-law, took the communication to Mrs. Surowitz, explained it to her, and she signed it. Later, in August 1963, when the corporation declined to pay its dividend, Mrs. Surowitz, who had purchased the stock for the specific purpose of gaining a source of income, was sufficiently disturbed to seek Mr. Brilliant’s counsel. He explained to her that he and Mr. Rockier were of the opinion that the corporation’s management had wrongfully damaged the corporation, and together at that time Mrs. Surowitz and her son-in-law discussed the matter of her bringing this suit. When, on the basis of this conversation, Mrs. Surowitz stated that she agreed that suit be filed in her name, Mr. Rockier prepared a formal complaint which he mailed to Mr. Brilliant. Mr. Brilliant then, according to both his affidavit and Mrs. Surowitz’s testimony, read and explained the complaint to his mother-in-law before she verified it. Her limited education and her small knowledge about any of the English language, except the most ordinarily used words, probably is sufficient guarantee that the courts below were right in finding that she did not understand any of the legal relationships or comprehend any of the business transactions described in the complaint. She did know, however, that she had put over $2,000 of her hard-earned money into Hilton Hotels stock, that she was not getting her dividends, and that her son-in-law who had looked into the matter thought that something was wrong. She also knew that her son-in-law was qualified to help her and she trusted him. It is difficult to believe that anyone could be shocked or harmed in any way when, in the light of all these circumstances, Mrs. Suro-witz verified the complaint, not on the basis of her own knowledge and understanding, but in the faith that her son-in-law had correctly advised her either that the statements in the complaint were true or to the best of his knowledge he believed them to be true. We assume it may be possible that there can be circumstances under which a district court could stop all proceedings in a derivative cause of action, relieve the defendants from filing an answer to charges of fraud, and conduct a pre-trial investigation to determine whether the plaintiff had falsely sworn either that the facts alleged in the complaint were true or that he had information which led him to believe they were true. And conceivably such a pre-trial investigation might possibly reveal facts surrounding the verification of the complaint which could justify dismissal of the complaint with prejudice. However, here we need not consider the question of whether, if ever, Federal Rule 23 (b) might call for such summary action. Certainly it cannot justify the court’s summary dismissal in this case. Rule 23 (b) was not written in order to bar derivative suits. Unquestionably it was originally adopted and has served since in part as a means to discourage “strike suits” by people who might be interested in getting quick dollars by making charges without regard to their truth so as to coerce corporate managers to settle worthless claims in order to get rid of them. On the other hand, however, derivative suits have played a rather important role in protecting shareholders of corporations from the designing schemes and wiles of insiders who are willing to betray their company’s interests in order to enrich themselves. And it is not easy to conceive of anyone more in need of protection against such schemes than little investors like Mrs. Surowitz. When the record of this case is reviewed in the light of the purpose of Rule 23 (b)’s verification requirement, there emerges the plain, inescapable fact that this is not a strike suit or anything akin to it. Mrs. Surowitz was not interested in anything but her own investment made with her own money. Moreover, there is not one iota of evidence that Mr. Brilliant, her son-in-law and counselor, sought to do the corporation any injury in this litigation. In fact his purchases for the benefit of his family of more than $50,000 of securities in the corporation, including a $10,000 debenture, all made years before this suit was brought, manifest confidence in the corporation, not a desire to harm it in any way. The Court of Appeals in affirming the District Court’s dismissal, however, indicated that whether Mrs. Surowitz and her counselors acted in good faith and whether the charges they made were truthful were irrelevant once Mrs. Surowitz demonstrated in her oral testimony that she knew nothing about the content of the suit. That court said: “Those affidavits reveal that substantial and diligent investigation by Brilliant, Rockier and others preceded the filing of this complaint. . . . Neither affidavit, however, does anything, if anything could be done, to offset plaintiff’s positive disavowal of any relevant knowledge or information other than the fact of her stock ownership.” ' 342 F. 2d, at 607. In fact the opinion of the Court of Appeals indicates in several places that a woman like Mrs. Surowitz, who is uneducated generally and illiterate in economic matters, could never under any circumstances be a plaintiff in a derivative suit brought in the federal courts to protect her stock interests. We cannot construe Rule 23 or any other one of the Federal Rules as compelling courts to summarily dismiss, without any answer or argument at all, cases like this where grave charges of fraud are shown by the record to be based on reasonable beliefs growing out of careful investigation. The basic purpose of the Federal Rules is to administer justice through fair trials, not through summary dismissals as necessary as they may be on occasion. These rules were designed in large part to get away from some of the old procedural booby traps which common-law pleaders could set to prevent unsophisticated litigants from ever having their day in court. If rules of procedure work as they should in an honest and fair judicial system, they not only permit, but should as nearly as possible guarantee that bona fide complaints be carried to an adjudication on the merits. Rule 23 (b), like the other civil rules, was written to further, not defeat the ends of justice. The serious fraud charged here, which of course has not been proven, is clearly in that class of deceitful conduct which the federal securities laws were largely passed to prohibit and protect against. There is, moreover, not one word or one line of actual evidence in this record indicating that there has been any collusive conduct or trickery by those who filed this suit except through intimations and insinuations without any support from anything any witness has said. The dismissal of this case was error. It has now been practically three years since the complaint was filed and as yet none of the defendants have even been compelled to admit or deny the wrongdoings charged. They should be. The cause is reversed and remanded to the District Court for trial on the merits. Reversed and remanded. MR. Justice Fortas took no part in the decision of this case. The Chief Justice took no part in the consideration or decision of this case. 48 Stat. 74, as amended, 15 U. S. C. § 77a et seq. (1964 ed.). 48 Stat. 881, as amended, 15 U. S. C. § 78a et seq. (1964 ed.). Del. Code Ann. Tit. 8, §101 et seq. (1953 ed.). “(b) Secondary Action by Shareholders. In an action brought to enforce a secondary right on the part of one or more shareholders in an association, incorporated or unincorporated, because the association refuses to enforce rights which may properly be asserted by it, the complaint shall be verified by oath and shall aver (1) that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law and (2) that the action is not a collusive one to copier on a court of the United States jurisdiction of any action of which it would not otherwise have jurisdiction. The complaint shall also set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees and, if necessary, from the shareholders such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.” Consider, for example, these three excerpts taken from separate paragraphs in the Court of Appeals’ opinion: “We have considered all arguments advanced by the plaintiff. We have considered the record in the light of plaintiff’s limited grasp of the English language and the intricacies of corporate finance. We have considered the peculiar position of a plaintiff in a suit such as this as, principally, the instrument through which the judicial machinery is set in motion. It is not unreasonable to state as a minimum requirement that the plaintiff- have general knowledge of the acts of which she complains and the connection of the defendants to those acts which she alleges. We conclude that any lesser requirement would make the verification provision farcical. “But if the verification provision of the Rule is to have any real meaning, it requires that a plaintiff must have knowledge of his own position and relationship to the suit, of the official identity of the parties against whom the suit is brought and general knowledge of the wrongful acts which he alleges as a foundation for his complaint. “We think the court below correctly held that a pleading governed by Rule 23 (b) is sham when it clearly appears that the ostensible verification is a mere formality without knowledgeable or informative comprehension in the party plaintiff whose verification gives it the breath of life. That breath is not instilled by the reading of words to that plaintiff which she obviously did not understand.” 342 F. 2d, at 608, 606, and 607-608. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
sc_caseorigin	036	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. MARSTON et al. v. LEWIS et al. No. 72-899. Decided March 19, 1973 Per Curiam. Fourteen county recorders and other public officials of Arizona appeal from a judgment of a three-judge district court holding the State’s 50-day durational voter residency requirement and its 50-day voter registration requirement unconstitutional under the decision in Dunn v. Blumstein, 405 U. S. 330 (1972). A permanent injunction was entered against enforcement of these or any other greater-than-30-day residency and registration requirements in any election held after November 1972. Appellants do not seek review of the District Court’s judgment insofar as it enjoins application of the 50-day requirements in presidential elections. See Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U. S. C. § 1973aa-l. Appellants assert, however, that the requirements, as applied to special, primary, or general elections involving state and local officials, are supported by sufficiently strong local interests to pass constitutional muster. We agree and reverse. In Dunn v. Blumstein, we struck down Tennessee’s durational voter residency requirement of one year in the State and three months in the county. We recognized that a person does not have a federal constitutional right to walk up to a voting place on election day and demand a ballot. States have valid and sufficient interests in providing for some period of time — prior to an election — in order to prepare adequate voter records and protect its electoral processes from possible frauds. A year, or even three months, was found too long, particularly in the context of “the judgment of the Tennessee lawmakers,” who had set “the cutoff point for registration [at] 30 days before an election . . . .” 405 U. S., at 349. The Arizona scheme, however, stands in a different light. The durational residency requirement is only 50 days, not a year or even three months. Moreover, unlike Tennessee’s, the Arizona requirement is tied to the closing of the State’s registration process at 50 days prior to elections and reflects a state legislative judgment that the period is necessary to achieve the State’s legitimate, goals. We accept that judgment, particularly in light of the realities of Arizona’s registration and voting procedures. Those procedures, apparently first adopted during the Populist Era, rely on a “massive” volunteer deputy registrar system. See Ariz. Rev. Stat. Ann. § 16-141. According to appellants’ testimony, although these volunteers make registration convenient for voters, they average 1.13 mistakes per voter registration and the county recorder must correct those mistakes before certifying to the “completeness and correctness” of each precinct register. Ariz. Rev. Stat. Ann. § 16-155. The District Court itself noted that there were estimates that “in Maricopa County alone, some 4,400 registered voters might be denied the right to vote if the county voter list is in error by only one percent.” An additional complicating factor in Arizona registration procedures is the State’s fall primary system. The uncontradicted testimony demonstrates that in the weeks preceding the deadline for registration in general elections — a period marked by a curve toward the “peak” in terms of the registration affidavits received — county recorders and their staffs are unable to process the incoming affidavits because of their work in the fall primaries. It is only after the primaries are over that the officials can return to the accumulated backlog of registration affidavits and undertake to process them in accordance with applicable statutory requirements. On the basis of the evidence before the District Court, it is clear that the State has demonstrated that the 50-day voter registration cutoff (for election of state and local officials) is necessary to permit preparation of accurate voter lists. We said in Dunn v. Blumstein that “[f]ixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud — and a year, or three months, too much.” 405 U. S., at 348. In the present case, we are confronted with a recent and amply justifiable legislative judgment that 50 days rather than 30 is necessary to promote the State’s important interest in accurate voter lists. The Constitution is not so rigid that that determination and others like it may not stand. The judgment of the District Court, insofar as it has been appealed from, is Reversed. The requirements appear, respectively, at Ariz. Rev. Stat. Ann. §§ 16-101 (3) and 16-107. These provisions were enacted after our decision in Dunn v. Blumstein. Appellees are a deputy registrar in Maricopa County and a resident of Maricopa County. Section 1973aa-l withstood constitutional attack in Oregon v. Mitchell, 400 U. S. 112 (1970). Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_district	G	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". Eloise BEARD, as Administratrix for the Estate of Jeff Beard, the Deceased, Plaintiff-Appellant, v. Stanley B. ROBINSON, Roy Martin Mitchell, and Certain Officers of the Federal Bureau of Investigation, whose true identities are unknown to the plaintiff, Defendants-Appellees. No. 76-1708. United States Court of Appeals, Seventh Circuit. Argued Feb. 8, 1977. Decided Sept. 28, 1977. Harold C. Hirshman, Chicago, Ill., for plaintiff-appellant. Thomas P. Sullivan, U. S. Atty., Alexandra M. Kwoka, Asst. U. S. Atty., Ronald S. Barliant, Chicago, Ill, for defendants-appellees. Before BAUER and WOOD, Circuit Judges, and SHARP, District Judge. The Hon. Allen Sharp, United States District Court for the Northern District of Indiana, is sitting by designation. BAUER, Circuit Judge. In this appeal we must determine whether damage claims brought against a state officer under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and against federal officers under the Fourth Amendment survive the death of the injured party, and whether the claims are time-barred. The district court held that some of the claims did not survive the death of the injured party and that the other claims were time-barred. We reverse. I. Plaintiff Eloise Beard brought this action in the district court as administratrix of the Estate of Jeff Beard, who allegedly was murdered by the defendants. Plaintiff sued Stanley Robinson, a Chicago policeman at the time of the events underlying the suit, under the Civil Rights Acts, 42 U.S.C. § 1981, et seq., and the other defendants, Federal Bureau of Investigation personnel, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The complaint alleges that the defendants conspired to deprive, and actually deprived, Jeff Beard of his constitutional rights in the course of an FBI investigation into corruption among members of the Chicago Police Department. As part of the investigation, the FBI purportedly employed defendant William O’Neal to covertly gather information about the Department by engaging in criminal acts with Robinson and others. Defendant Roy Mitchell served as O’Neal’s FBI contact. With the assistance of Mitchell and other unknown FBI agents, Robinson and O’Neal allegedly planned and committed Jeff Beard’s murder on or about May 17, 1972, when they seized Beard in Chicago under the pretext that they had a warrant for his arrest, searched and handcuffed him, and drove him to Indiana, where Robinson clubbed and shot him to death. No warrant for Beard’s arrest ever existed. The complaint, filed on September 27, 1975, seeks both compensatory and punitive damages from the defendants for violating Beard’s rights under the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution. Upon motion of the defendants, the district court dismissed the complaint. The court reasoned that our decision in Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974), mandates that federal civil rights actions survive for the benefit of an injured party’s estate only to the extent that the applicable state law permits such claims to survive. Looking to the Illinois Survival Act, Ill.Rev. Stat. ch. 3, § 339, the court concluded that the instant claims survived only insofar as they sought damages for the physical injuries Beard suffered. Relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), the court then dismissed the action altogether because the physical injury claims were barred by Illinois’s two-year statute of limitations. Ill.Rev.Stat. ch. 83, § 15. II. Survival We turn first to the question of whether the claims alleged survive Beard’s death. Plaintiff presents several theories for the survival of her action. She argues that the action as a whole survives (1) under the Illinois Survival Act, both as an action to recover damages for “injuries] to the person” and as an action “against officers for misfeasance, malfeasance, or non-feasance”; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives “against officers for misfeasance, malfeasance or non-feasance” and thus need not consider plaintiff’s other arguments. Neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961). At least one court has found it necessary to fashion an independent federal common law rule when state law, which would have defeated the survival of the federal claim, was deemed inconsistent with the strong federal policy of insuring the survival of federal remedies for violations of federal civil rights. Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977). Because we believe the borrowing of state law in the circumstances of this case is completely consistent with the federal policies underlying Bivens and the Civil Rights Acts, we have no occasion to fashion an independent federal common law rule here. With respect to plaintiff’s civil rights claims, 42 U.S.C. § 1988 authorizes our reference to state law insofar as it is “not inconsistent with the Constitution and laws of the United States.” With respect to plaintiff’s Bivens claim, the adoption of state law likewise seems warranted since it is consistent with the federal policies underlying Bivens. The applicable Illinois law that we adopt as the governing federal rule is found in the Illinois Survival Act, Ill.Rev.Stat. ch. 3, § 339, which provides: “In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors’, approved January 31, 1934, as amended.” In view of the Illinois Supreme Court’s declaration that this act is “remedial in its nature and is to be liberally construed,” McDaniel v. Bullard, 34 Ill.2d 487, 491, 216 N.E.2d 140, 143 (1966), we believe the district court erred in relying on Kent v. Muscarello, 9 Ill.App.3d 738, 293 N.E.2d 6 (2d Dist. 1973), for the proposition that this action does not survive as an action “against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies.” To be sure, Kent held that a malicious prosecution action against two Barrington, Illinois policemen did not survive the death of the injured party. Kents holding that the policemen were not “officers” for the purposes of the Illinois Survival Act, however, was based on the fact that the policemen were not deemed “officers” at common law, by statute or by municipal ordinance. For the latter proposition, Kent relied on Krawiec v. Industrial Commission, 372 Ill. 560, 564, 25 N.E.2d 27 (1939), which held that policemen of the City of Chicago Heights, Illinois were not made officers of the City by municipal ordinance and thus were entitled to recover under the Illinois Workmen’s Compensation Act. However, Krawiec itself distinguished City of Chicago v. Industrial Commission, 291 Ill. 23, 125 N.E. 705 (1920), which held that City of Chicago policemen were made officers by city ordinances and thus were not entitled to workmen’s compensation benefits. Since City of Chicago has not been overruled by the Illinois Supreme Court and thus still stands for the proposition that Chicago policemen are officers of the v City, we feel compelled to follow City of - Chicago and hold that Chicago policemen are also “officers” for purposes of the Illinois Survival Act. Accordingly, we hold that the instant action brought against defendant Robinson, sued in his capacity as a Chicago policeman, survives Beard’s death. See Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 129 (N.D.Ill.1972). Moreover, inasmuch as FBI agents are deemed federal officers under federal law, see Lowenstein v. Rooney, 401 F.Supp. 952, 960-62 (E.D.N.Y.1975), we believe that plaintiff’s Bivens action also can be characterized as an action “against officers” within the meaning of the Illinois Survival Act. Accordingly, adopting as federal law the Illinois Survival Act, we hold that plaintiff’s Bivens action against the federal defendants survives as well. III. Statute of Limitations Neither the Civil Rights Acts nor Bivens fixes a time limit within which suits brought thereunder must be commenced. As to plaintiff’s civil rights claims, however, precedents establish that the applicable limitations period is that which a court of the State where the federal court sits would apply had the action been brought there. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); see 42 U.S.C. § 1988. Hence, we look to Illinois law to determine the statute of limitations applicable to defendant Robinson. As to plaintiff’s Bivens claims, the parties to this action agree that the applicable limitations period is that which would govern an analogous action brought in a court of the forum state. Regan v. Sullivan, 417 F.Supp. 399 (E.D.N.Y.1976); Lombard v. Board of Education of the City of New York, 407 F.Supp. 1166, 1171 (E.D.N.Y.1976), rev’d on other grounds, 502 F.2d 631 (2d Cir. 1974); Ervin v. Lanier, 404 F.Supp. 15, 20 (E.D.N.Y.1975); see Fine v. City of New York, 529 F.2d 70, 76-77 (2d Cir. 1975). Accordingly, we will also look to Illinois law to determine the statute of limitations applicable to the federal defendants. We note, however, that our borrowing of state limitations periods to determine the timeliness of both these claims is conditioned on the state limitations period being consistent with the policies underlying the federal rights of action. Occidental Life Insurance Co. v. EEOC, - U.S. -, -, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977); see 42 U.S.C. § 1988. Although the parties agree that we should look to Illinois law to determine the applicable statute of limitations, they disagree as to which Illinois statute of limitations should be applied. The plaintiff, relying on Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958), argues that Illinois’s five-year statute of limitations governing “all civil actions not otherwise provided for” by the Illinois Limitations Act, Ill.Rev.Stat. ch. 83, § 16, governs both her claims. Plaintiff notes that under Illinois law, this limitations period applies to causes of action created by statute, Blakeslee’s Storage Warehouses v. City of Chicago, 369 Ill. 480, 17 N.E.2d 1, 4 (1938); Parmelee v. Price, 208 Ill. 544, 70 N.E. 725 (1904); Gibralter Ins. Co. v. Varkalis, 115 Ill.App.2d 130, 253 N.E.2d 605, 608-09 (1969), aff’d 46 Ill.2d 481, 263 N.E.2d 823 (1970); Lyons v. Morgan County, 313 Ill.App. 296, 40 N.E.2d 103 (1942), and that the action created by the Civil Rights Acts is such a cause of action. The same statute of limitations should govern the claims brought against the federal officers, says plaintiff, because the Bivens action is analogous to actions brought under the Civil Rights Acts, and it would be incongruous to apply a different limitations period to such .actions merely because federal rather than state officers are being sued. The defendants, relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), argue that Illinois’s two-year statute of limitations for “injuries] to the person, false imprisonment, and abduction,” Ill.Rev.Stat. ch. 83, § 15, should be applied to plaintiff’s civil rights claims because the actions governed by this statute are the substantive offenses that most closely resemble the misconduct in which the defendants here are alleged to have engaged. With respect to the Bivens action, defendants contend that the two-year limitations period should also govern because (1) Bivens actions are not based upon a statutory liability like civil rights actions, but are actions to redress “constitutional torts,” and (2) the two-year statute of limitations governing the instant civil rights claims should be applied to the analogous Bivens claims as well. We turn first to the question of which state statute of limitations period applies to plaintiff’s statutory civil rights claims and confess at the outset that the state of the law in this Circuit regarding the limitations period applicable to claims brought under federal civil rights acts is less than lucid. In Wakat v. Harlib, supra, the plaintiff sued several Chicago police officers who arrested him without a warrant or probable cause and detained him six days without charging him with a crime, without allowing him to see an attorney, and without allowing him to appear before a judge for a bail hearing. The officers also coerced him into signing a confession later used in court to convict him, searched his home and workplace, and seized his personal property without a warrant or probable cause. The plaintiff’s action was based on 42 U.S.C. §§ 1983 and 1985, and we held his claims were governed by Illinois’s five-year statute of limitations covering causes of action created by statute. Subsequently, Wakat’s holding was followed or cited without disapproval in at least the following cases: Inada v. Sullivan, 523 F.2d 485 (7th Cir. 1975); Duncan v. Nelson, 466 F.2d 939, 941 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972); Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971); Weber v. Consumers Digest, Inc., 440 F.2d 729, 731 (7th Cir. 1971); Baker v. F. & F. Investment, 420 F.2d 1191, 1197-98 (7th Cir.), cert. denied sub nom. Universal Builder’s Inc. v. Clark, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49 (1970); Amen v. Crimmins, 379 F.Supp. 777, 779 (N.D.Ill.1974); Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125, 128 (N.D.Ill.1972). In Jones v. Jones, supra, however, we took a different tack toward the problem of ascertaining the applicable limitations period for federal civil rights claims. The Jones plaintiff had brought suit under 42 U.S.C. § 1983 against his ex-wife, members of her family, her lawyers, and judges of the Illinois Circuit and Appellate Courts for combining to deprive him of his constitutional rights in a series of court actions involving his ex-wife’s claims for alimony and child support that ultimately resulted in his serving a jail term. After determining that the judges were immune from suit and that the lawyers could not be sued under the Civil Rights Acts because they were not acting under color of state law, we looked to “the substance of the alleged injury” to determine the applicable limitations period and held that the two-year statute of limitations contained in Ill.Rev.Stat. ch. 83, § 15 governed the action against the remaining defendants because the damages sought resulted from an injury to the plaintiff’s person, false imprisonment, and malicious prosecution. We attempted to distinguish Wakat on the ground that the earlier case involved a conspiracy claim brought under 42 U.S.C. § 1985, rather than a Section 1983 claim. Subsequently, Jones was cited with approval in Baker v. F. & F. Investment Co., 489 F.2d 829, 837 (7th Cir. 1973), and followed by at least three district courts in the Circuit. Cage v. Bitoy, 406 F.Supp. 1220 (N.D.Ill.1976); Klein v. Springborn, 327 F.Supp. 1289, 1290 (N.D.Ill. 1971); Skrapits v. Skala, 314 F.Supp. 510 (N.D.Ill.1970). Upon reflection, it seems to us that Wakat and Jones cannot stand together, for underlying the inconsistent results reached therein are two inconsistent approaches to determining the applicable statute of limitations. The Wakat approach treats all claims founded on the Civil Rights Acts as governed by the five-year Illinois statute of limitations applicable to all statutory causes of action that do not contain their own limitations periods. Jones, on the other hand, looks beyond the fact that a statutory cause of action has been alleged and seeks to characterize the facts underlying plaintiff’s claim in terms of traditional common law torts for purposes of determining the applicable state statute of limitations. Faced with these two conflicting approaches that have generated inconsistent results within the Circuit, we now believe it is necessary to overrule Jones and adopt the Wakat rule as the law of the Circuit for the following reasons. We believe our choice of the Wakat rule is compelled by the fundamental differences between a civil rights action and a common law tort. The Civil Rights Acts do not create “a body of general federal tort law.” Paul v. Davis, 424 U.S. 693, 701, 9S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). Rather, they “creat[e] rights and impos[e] obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course givf rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability.” Smith v. Cre-mins, 308 F.2d 187, 190 (9th Cir. 1962) (footnote and citations omitted). As Justice Harlan suggested with regard to the Civil Rights Acts, “a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” Monroe v. Pape, 365 U.S. 167, 194, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (concurring opinion). By following the Wakat approach of applying a uniform statute of limitations, we avoid the often strained process of characterizing civil rights claims as common law torts, and the “inconsistency and confusion [that] would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several different periods of limitation applicable to each state-created right were applied to the single federal cause of action.” Smith v. Cremins, supra at 190. Moreover, we note that the Wakat approach of looking to a general state statute of limitations prevails in most of our sister circuits, while the Jones approach of looking to the underlying tort to determine the applicable state statute of limitations has «been followed consistently only by the ’Third Circuit. We thus hold that the Illinois five-year statute of limitations applies to statutory claims brought under the Civil Rights Acts. Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), is hereby overruled. Turning to the Bivens claims, we recognize plaintiffs argument for application of the same statute of limitations that we apply to civil rights claims is a compelling one. A contrary result could lead to the incongruous application of inconsistent limitations periods to different members of a single conspiracy, based solely on whether an officer alleged to have committed the constitutional violation was employed by the state or federal government. Cf. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346-47 (2d Cir. 1972) (immunity of state and federal officers). On the other hand, since Bivens actions are not creatures of statute, the state law rationale used above for application of the five-year statute of limitations is not appropriate to Bivens claims. With these considerations in mind, we look to the Illinois statutes of limitations that we might apply. Again we are faced with a choice between the two-year limitations periods for torts in Ill.Rev.Stat. ch. 83, § 15, and the five-year limitations period for “actions not otherwise provided for” in Ill.Rev.Stat. ch. 83, § 16. We can eliminate the first choice for the same reasons we refused to apply the Illinois statute of limitations for torts to the state defendant here. Like civil rights claims, Bivens claims for the deprivation of constitutional rights cannot be equated with state tort claims. Both the elements of the two types of claims and the underlying rights asserted are distinctly different. Regan v. Sullivan, 417 F.Supp. 399, 403 (E.D.N.Y.1976). The Supreme Court recognized these differences in Bivens itself: “[A]s our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen.” 403 U.S. at 392, 91 S.Ct. at 2002. “The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s guarantee against searches and seizures, may be inconsistent or even hostile.” 403 U.S. at 394, 91 S.Ct. at 2003. The only other applicable statute of limitations is the five-year catch-all period of limitations we applied to the instant civil rights claims. For those claims, we held that the five-year period applied because they were based on a liability created by statute, for which Illinois courts apply the five-year limitations period. For Bivens -type claims, we think it inappropriate to apply the five-year statute of limitations on that basis, but apply that statute because no other Illinois statute of limitations can appropriately be applied. This conclusion is reinforced by the knowledge that an identical statute of limitations period will be applied to all the defendants in this action, thus avoiding the inconsistent result of applying different statutes of limitations to defendants who are charged with engaging in a single conspiracy. In summary, we hold that this survivors action may be brought by the plaintiff and that her claims are not time-barred. Accordingly, the district court’s judgment is reversed, and the case is remanded for further proceedings. REVERSED and REMANDED. . Ill.Rev.Stat. ch. 3, § 339 provides: “In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander or libel), actions to recover damages for an injury to real or personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 14 of Article VI of ‘An Act relating to alcoholic liquors’, approved January 31, 1934, as amended.” . 42 U.S.C. § 1988 provides in pertinent part: “The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.” . State survival statutes commonly have been adopted as a matter of federal law for application to other federal causes of action for which there is no federal rule regarding abatement or survival. E. g., Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955) (Jones Act); Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941) (admiralty tort); Van Beeck v. Sabine Towing Co., 300 U.S. 342, 57 S.Ct. 452, 81 L.Ed. 685 (1937) (Merchant Marine Act). See also the other cases cited in Brazier v. Cherry, supra, and Pritchard v. Smith, supra. . Ill.Rev.Stat. ch. 83, § 16 provides: “Except as provided in Section 2-725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11-13 of ‘the Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” . Ill.Rev.Stat. ch. 83, § 15 provides: “Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation, shall be commenced within two years next after the cause of action accrued.” . Apart from the Jones Court’s failure to recognize that Wakat was based on 42 U.S.C. § 1983 as well as Section 1985 and thus could not be distinguished merely on that ground, Wakat’s reasoning could have been applied without strain to the Jones facts; the action brought by Jones under 42 U.S.C. § 1983 could just as well have been characterized as a statutory right of action governed by Illinois’s five-year statute of limitations. Likewise, the damages Wakat sought arose from injuries that could have been characterized as injuries to his person, false imprisonment, and abduction, all mentioned in Ill.Rev.Stat. ch. 83, § 15. In view of our overruling Jones, the portions of this opinion relative to our holding have been circulated among all the judges of this Court in regular active service. No judge favored a rehearing en banc with respect to that holding. Judge Tone did not participate in the Court’s action. . E. g., Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974); Howell v. Cataldi, 464 F.2d 272, 277 (3d Cir. 1972). The Second and Ninth Circuits uniformly apply state limitations periods for statutory causes of action. E. g., Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973); Swan v. Bd. of Higher Education of the City of New York, 319 F.2d 56, 60 (2d Cir. 1963); Donovan v. Reinbold, 433 F.2d 738, 741-42 (9th Cir. 1970); Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). The Fourth Circuit, in cases arising out of Virginia, applies that State’s general limitations period for personal injuries rather than its shorter limitations period for intentional torts. That court reasons that a federal civil rights action is more serious than a common law tort and thus deserves a longer statute of limitations. Almond v. Kent, 459 F.2d 200, 203-04 (4th Cir. 1972), followed in Runyon v. McCrary, 427 U.S. 160, 179-82, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), and Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972). There is a split in authority in the Fifth Circuit. Some cases apply state limitations periods for statutory actions. White v. Padgett, 475 F.2d 79, 85 (5th Cir.), cert. denied, 414 U.S 861, 94 S.Ct. 78, 38 L.Ed.2d 112 (1973); Franklin v. City of Marks, 439 F.2d 665 (5th Cir. 1971); Nevels v. Wilson, 423 F.2d 691 (5th Cir. 1970). Others apply the state statute of limitations that would govern a common law action that could be brought in a state court upon the same facts. Shaw v. McCorkle, 537 F.2d 1289 (5th Cir. 1976); Shank v. Spruill, 406 F.2d 756 (5th Cir. 1969); Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967). The most recent cases in the Sixth Circuit have applied state limitations periods for statutory actions. Mason v. Owens-Illinois, Inc., 517 F.2d 520 (6th Cir. 1975); Garner v. Stephens, 460 F.2d 1144 (6th Cir. 1972). Contra, Madison v. Wood, 410 F.2d 564 (6th Cir. 1969); Bufalino v. Michigan Bell Tel. Co., 404 F.2d 1023, 1028 (6th Cir. 1968); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968). In Reed v. Hutto, 486 F.2d 534 (8th Cir. 1973), the Eighth Circuit recognized the existence of a clear split in the circuit between the two methods of choosing an appropriate statute of limitations. Since Reed, the court has avoided the problem by applying state statutes of limitations, other than those for common law torts or for statutory actions, that “clearly apply” to civil rights actions. Chambers v. Omaha Public School District, 536 F.2d 222, 228 (8th Cir. 1976) (Nebraska statute of limitations applying to “actions upon a liability created by federal statute ... for which ... no period of limitations is provided in such statute.” Peterson v. Fink, 515 F.2d 815 (8th Cir. 1975) (Missouri statute of limitations applying to actions against officers for liabilities incurred by official acts). The Tenth Circuit has applied general state statutes of limitations for “injuries to the rights of another not arising from a contract and not otherwise enumerated.” Crosswhite v. Brown, 424 F.2d 495 (10th Cir. 1970); Wilson v. Hinman, 172 F.2d 914 (10th Cir.), cert. denied, 336 U.S. 970, 69 S.Ct. 933, 93 L.Ed. 1121 (1949). Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED PARCEL SERVICE, INC., Respondent. No. 6075. United States Court oí Appeals First Circuit. Heard May 6, 1963. Decided June 4, 1963. Elliott Moore, Washington, D. C., with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Gary Green, Washington, D. C., were on brief, for petitioner. Vernon C. Stoneman, Boston, Mass., with whom Alan S. Miller and Stoneman & Chandler, Boston, Mass., were on brief, for respondent. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. HARTIGAN, Circuit Judge. This is a petition of the National Labor Relations Board for enforcement of its order issued against respondent on March 30, 1962, following the usual proceedings under the Act. The Board, in adopting the opinion of its trial examiner, found that the respondent had discriminated with respect to the hire and tenure of one of its employees in violation of Section 8(a) (3) of the Act and had violated Section 8(a) (1) by interrogating this same employee. The issue here is whether substantial evidence on the record considered as a whole supports the Board’s findings. The pertinent facts may be briefly stated. Respondent operates a national parcel delivery service. In March 1960, it opened a new facility in Providence, Rhode Island, under the supervision of Michael J. Fitzgerald. At the very outset of the establishment of the Providence branch, the company agreed to recognize the Union. The act of immediate Union recognition was consonant with the respondent’s uniform nationwide policy. Respondent also orally authorized the checkoff of Union dues from all employees, recognized one of the employees as the Union steward, following his appointment by the Union’s business agent, and by May 1960, further required employees to become Union members within thirty days of their employment. The record indicates that the respondent strives for a considerable selectivity in the employment of its parcel delivery drivers and utilizes scientific personnel recruitment techniques to achieve this end. Its reason is that it offers a highly specialized type of service. As part of this program, respondent regularly administers a written intelligence test to each delivery driver applicant. One of these tests is the so-called “Wonderlic” test. Under this examination, each applicant receives a raw score based on the number of correct answers out of a total of fifty questions. This raw score is thereafter converted by means of a table to a range between one and twenty. The record indicates that it was the policy of the company to restrict its hiring of parcel delivery drivers to those achieving a score of ten or more on the test, although its minimum score for these drivers is eight. For an employee to be considered for advancement to supervisory status, he must have received a score of twelve on the test. While these were the desired criteria, there was testimony that in special cases the respondent had permitted deviations from these norms. Vincent J. Guertin was one of the parcel delivery drivers hired by respondent during the initial staffing of its Rhode Island operation in March, 1960. He was a member of the Union and was referred to the respondent by the Union’s business agent. Guertin was hired by Fitzgerald — respondent’s local manager —despite the fact that he only achieved a score of six on the personnel test. It is uncontradicted that this was the lowest score of any delivery driver employee that the company had hired in Rhode Island. At the hearing respondent explained its action of hiring Guertin — despite his low score — on the basis that most of the applicants referred to respondent by the Union during the initial organizational stage were highly unsatisfactory. However, to avoid any appearance of apparent Union discrimination, the respondent resolved to hire a few of the more “presentable” candidates, despite the demonstrably marginal status of their qualifications, as evidenced by the personnel test score. Guertin was one of the individuals thus hired. Thereafter Guertin remained with respondent until he was discharged on May 26, 1961. There is no question that he was a satisfactory employee in all respects, a point evidenced by the fact that from time to time he was selected by respondent to train new delivery drivers. The reason why he was discharged presents the pivotal issue in this case. It is respondent’s position that in a routine review of personnel files, Guertin’s extremely low score on the Wonderlic test had come to the attention of respondent’s district operations manager —one Edward Polusky. Thereafter, over the course of his employment, Guertin’s presence was apparently a source of continuing concern to Polusky and he brought the matter to the attention of Fitzgerald on at least two occasions. Meanwhile, Guertin while performing satisfactorily as a delivery driver, had repeatedly begun to inquire of Fitzgerald as to how he might obtain supervisory status with the respondent. When Fitzgerald informed Polusky of this fact, he — in the light of company policy — determined that an employee who had scored a mere six on the personnel test would never be promoted to supervision with respondent. Consequently, according to Polusky, to avert Guertin’s “frustration” and its residual effects on employee morale, he deemed it prudent to discharge Guertin forthwith and thus nip, in its incipiency, a potentially undesirable employer-employee relationship. Thereafter, on May 26, 1961 Guertin was discharged, despite record testimony that Fitzgerald argued against this action, in view of Guertin’s entirely satisfactory performance record. Guertin was informed that his low score on the personnel test was the sole reason for his discharge and this has been the respondent’s consistent position throughout the present proceedings. The Board, on the other hand, found that respondent’s reliance on Guertin’s low test score and its prospective restrictive impact on his aspirations for advancement with respondent were mere pretexts — adduced simply to put a gloss on the respondent’s real motive for the discharge. Under the Board’s view, the real motive was the company’s desire to rid itself of an active and articulate union spokesman who — as characterized by the Board — was constantly galvanizing his fellow workers on to more strident Union activity. Again, in the Board’s view, while the company “recognized” the Union, the relationship between Union and company was a “quiescent” one whose blandness was in jeopardy if Guertin remained as an employee. Whatever, as an abstract proposition, we might think of the wisdom or the ■“business judgment” of discharging an employee because of his low score on a twelve minute aptitude test — some fourteen months after the event — and indeed after the employee has in the day-to-day operation of the company’s business proven himself satisfactory, nonetheless •we must respect the right of a company to make just such a decision. Cf., N. L. R. B. v. New England Web, Inc., 309 F. 2d 696 (1st Cir. 1962); National Labor Rel. Bd. v. Houston Chronicle Pub. Co., 211 F.2d 848, 855 (5th Cir. 1954). It is elemental that a company may discharge an employee for a good reason, a bad reason or indeed for no reason at all. And it is not for the courts to interfere with the unfettered right of companies to exercise these personnel judgments. There is only one instance when a court may validly move into this area and reverse the action of the employer and that instance is when the discharge is motivated — exclusively or substantially — -by anti-union animus. We have reviewed this record in detail and we cannot conscientiously find the slightest trace of hostility either towards the Union as a body or towards Guertin as an individual. It is not necessary to recount the instances upon which the Board relies to support its finding of supposed anti-union animus vis a vis the respondent and Guertin. Suffice it to say that they are little more than a multiplication of minutiae whose cumulative impact can in no sense be regarded as substantial evidence on the record considered as a whole. National Labor Relations Board v. Walton Mfg. Co., 369 U.S. 404, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962). From all that appears in this record, nowhere in its general operations nor in its specific relations with Guertin — is the respondent open to the charge of discrimination because of Union activity. Perhaps the essence of this case can best be summarized in the words of Hylek — the Union business agent — who testified thusly at the hearing, in response to whether he felt that respondent was anti-union : “A. No, I wouldn’t say they were anti-union, but they wanted every ‘t’ crossed and every ‘i’ dotted, but no reason at all. They seemed to fire people, I mean, they had to be right up there to the letter ‘t’. If they weren’t up there to the letter ‘t’, why, all you knew, they were out in the cold.” Again, all that appears from this record is a decision by the respondent that an employee who scored a six on an employment aptitude test was not “up to the letter t.” Although it is perhaps lamentable that it took fourteen months for this judgment to crystallize, more than this is required before the discharge can be laid at the door of union hostility. A decree will be entered setting aside the order of the Board. . International Brotherhood of Teamsters, Warehousemen and Helpers of America, Bocal 251. . There was uncontradicted evidence that all of respondent’s some 10,000 drivers was unionized — the vast majority of them members of the Teamsters — and that this was in accord with respondent’s policy over the course of the past twenty years. . The test is of twelve minutes duration. 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_fedlaw	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Joe Rodger NEWELL, Jr., individually and as natural parent and guardian of minor Joe Rodger Newell, III., Plaintiff-Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellee. No. 89-8634. United States Court of Appeals, Eleventh Circuit. June 28, 1990. James Lee Ford, Ford & Haley, Atlanta, Ga., for plaintiff-appellant. Ben Kingree, III., Carter & Ansley, Atlanta, Ga., for defendant-appellee. Before FAY and COX, Circuit Judges, and TUTTLE, Senior Circuit Judge. FAY, Circuit Judge: This appeal addresses the issue of the fiduciary obligations of an ERISA trustee that is also an insurance company. Plaintiff-appellant Newell and his family had health insurance coverage under his employer’s group contract with defendant-appellant The Prudential Insurance Company of America (Prudential). When Newell’s son suffered a medical problem requiring extended hospitalization, however, Prudential denied the greater part of the claim, declaring that its review of the medical records revealed that Newell’s claim contained charges excludable under the policy. After unsuccessfully appealing Prudential’s decision, Newell sued Prudential in Georgia state court. Prudential removed the case to federal court on the dual bases of diversity and federal question jurisdiction, the latter basis derived from the fact that Newell’s claims were governed entirely by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., which preempted Newell’s state causes of action. The district court ruled in favor of Prudential, holding that Prudential did not violate ERISA as a matter of law in authorizing a Prudential employee to make the determination of whether or not charges were excludable, that Prudential did not arbitrarily or capriciously deny the majority of Newell’s claim for benefits, and that Prudential provided sufficient notice to Newell of its denial of his claims. We AFFIRM the district court on the first two issues; we REVERSE and REMAND for further findings on the matter of notice. I. At all times relevant to this case, Joe Rodger Newell was an employee of Massey Fair Ingredient Sales, Inc. He and his family participated in Massey Fair’s group insurance policy No. GSP-86888M with Prudential, under which they received term life, accidental death or dismemberment, and major medical insurance. The health insurance policy contains several limitations on eligible charges; most pertinent to this case is the following paragraph in the section entitled “Generally Excluded Charges”: ■The term “Generally Excluded Charges” is used only in a health care expense Coverage. When it is used, it includes all of the following.... (3) Charge for Unnecessary Services or Supplies: A charge for services or supplies, including tests and check-up exams, that are not needed for medical care of a diagnosed Sickness or Injury. To be considered “needed”, a service or supply must meet all of these tests: (a) It is ordered by a Doctor. (b) It is commonly and customarily recognized throughout the Doctor’s profession as appropriate in the treatment of the Sickness or Injury. (c) It is neither educational nor experimental in nature. (d) It is not furnished mainly for the purpose of medical or other research. Also, in the case of a Hospital stay, the length of the stay and Hospital services and supplies will be considered “needed” only to the extent Prudential determines them to be: (a) related to the treatment of the Sickness or Injury; and (b) not allocable to the scholastic education or vocational training of the patient. Plaintiffs Exh. 1 at 6 [GCS 1011-(CR 011C>-1]. The policy also carries a Pre-Admission and Concurrent Review Service (PACRS) rider. As described by the district court in its factual findings, [t]he rider provides that the general policy includes the tests for determination of need. However, pursuant to the rider, claimants must request that Prudential make a “determination of need.” A determination of need is “a determination by Prudential, under the terms of the Coverage, that approves or disapproves a day or days of Inpatient Hospital Stay ... as needed for medical care of a diagnosed Sickness or Injury.” [Plaintiff’s Exh. 1 at] 45. The determination of need is to be made prior to admission. If Prudential finds “medical necessity” for admission, it will inform the doctor and the hospital, by phone, of the number of days of inpatient hospital stay that Prudential approves. The Policy provides that written notice will be sent to the claimant, the doctor and the hospital, indicating the number o[f] pre-authorized days. The Policy also provides that it may be possible to extend the number of days of inpatient hospital stay that Prudential approves as needed for the medical care of the patient’s condition; upon request being made, Prudential will make a new determination of need upon information received [from] the doctor. Newell v. Prudential Ins. Co. of America, 725 F.Supp. 1233, 1235-36 (N.D.Ga.1989). During the fall of 1986, it became apparent that Newell’s son, Joe III, nicknamed “Bear,” had a substance abuse problem and suffered from related depression. At first Bear underwent outpatient therapy, but after two months, his attending physician, Dr. Schmits, determined that Bear would be best served by intensive inpatient treatment. Bear was admitted on December 2, 1986, to Greenleaf Center Inc. (Greenleaf), a hospital that provides health care for people with psychiatric or substance abuse problems and has a specialized inpatient program for adolescents with such disorders. On the day of Bear’s admission, Cindy Sedman, the admissions and discharge coordinator for Greenleaf, contacted Prudential to find out about Bear’s coverage. She learned that Bear was in fact covered under the policy, but that PACRS would have to make a determination of need for the inpatient hospital stay. Sedman then called PACRS and orally informed them of the estimated length of hospitalization, the diagnosis, and the treatment plan. On December 4, 1986, PACRS sent a form letter to Dr. Schmits confirming Bear’s admission and requesting the admission notes and the estimated length of stay. Sedman mailed the requested information to PACRS on the same day. PACRS approved seven days of hospital stay on December 5, 1986, and relayed that information to Sedman on December 9, 1986. On that same date PACRS apprised Greenleaf and Dr. Schmits of the procedure to obtain extensions of approved days. A PACRS internal memorandum dated December 17, 1986, reflects that 21 additional days were certified and that Sedman was so notified by telephone. When Dr. Schmits contacted PACRS two days later to request a further extension, PACRS advised him that the policy allotted a maximum of 30 days for psychiatric treatment and that the limit had been reached. Dr. Schmits clarified to PACRS that the diagnosis comprised not merely depression, a purely psychiatric malady, but substance abuse as well. PACRS responded with a request for additional records to substantiate this “change” in diagnosis. Upon receiving the entire chart, on December 24, 1986, PACRS pre-certified coverage through January 13, 1987, a total of 42 days. PACRS notified Sedman of this extension on December 29, 1986. PACRS internal records indicate that after January 13, 1987, the case was to be put on “retro review”; that is, no further days would be pre-authorized, but rather the entire chart would be reviewed upon Bear’s discharge and the days, services and supplies deemed necessary at that time would be approved for payment. The record is very unclear, however, about whom, if anyone, PACRS informed of the impending retro review status until long after the decision was made. Meanwhile, Newell, having heard nothing from either Prudential or PACRS, contacted Gloria Buxton, a regional claims officer for Prudential, on December 29, 1986, to ascertain the situation regarding coverage for Bear’s hospitalization. Buxton agreed to look into the case for Newell. The record shows several Prudential internal notes indicating that Buxton’s office and Newell communicated by telephone throughout the following months, but the district court only found that Newell again heard from Buxton in a letter dated May 13, 1987. On January 13, 1987, a Prudential employee called Sedman to notify her that the benefits for substance abuse were unlimited, subject to certification of need by Prudential. Greenleaf on the same day again was advised that Bear’s stay had been approved through January 13, 1987. After January 13, 1987, the only communication between PACRS and Greenleaf or Sedman or Dr. Schmits for the next one and a half months consisted of requests for and the submission of hospital records. No information ever went to Newell. Finally, on March 5, 1987, PACRS conducted a full review of all the records received. Dr. Jed Goldart, the staff psychiatrist at PACRS, determined that no medical necessity existed for Bear’s hospitalization after January 25,1987. PACRS sent letters to Greenleaf, Dr. Schmits and Newell on March 9, 1987, informing them of PACRS’ decision to deny benefits subsequent to January 25, 1987. The letter further advised that they could forward additional information to PACRS for supplemental review. After the March 9, 1987, letter, there was a flurry of communication between Greenleaf and PACRS, Drs. Schmits and Goldart, Buxton and Newell, and the Prudential claims office and PACRS. Bear was discharged on April 3, 1987, at which time PACRS requested the entire record. After some difficulties with PACRS receiving the documents, PACRS finally secured the full record on April 29, 1987. On May 13, 1987, based on information obtained from Dr. Goldart, Buxton wrote Newell, essentially restating Prudential’s position that benefits would not be forthcoming for Bear’s hospitalization after January 25, 1987, because of lack of medical necessity. On June 1, 1987, Newell’s counsel wrote a letter to Prudential demanding immediate payment for the entirety of Bear’s treatment at Greenleaf. In response, on July 7, 1987, Dr. Goldart submitted Bear’s hospital records to the American Psychiatric Association (APA) for independent review. Two psychiatrists with the APA’s Peer Review System evaluated Bear’s hospital charts and determined that inpatient treatment was not medically necessary after January 25, 1987. Prudential communicated this finding to Newell on August 30, 1987. Newell brought suit against Prudential in state court seeking payment for the full medical treatment under Georgia law, as well as a punitive award penalizing Prudential for its alleged bad faith refusal to pay, reasonable expenses, costs and attorney’s fees, and any other appropriate relief. Prudential removed the case to federal court, asserting federal diversity jurisdiction and recognizing that Newell’s state cause of action had been preempted by ERISA and should have been instituted in federal court under ERISA. After a two-day bench trial and the submission of post-trial briefs, the district court held that Prudential had not violated its fiduciary duty nor acted arbitrarily or capriciously in denying Bear benefits after January 25, 1987. Nor did the court find insufficient Prudential’s notice to Newell of its decisions to deny benefits. The trial court also denied Newell’s motions for consideration for class certification and for leave to amend, stating that Prudential would be significantly prejudiced if the court granted these motions initiated after the case had been tried. Subsequently, Newell made another motion to amend and also moved for judgment to be entered in his favor. In response, Prudential brought to the court’s attention Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), a Supreme Court case that modified the standard of review applicable to ERISA cases involving the denial of benefits. The court directed the parties to “file briefs addressing the impact that the change in the applicable standard of review has on this action.” Rl-29-2. After reviewing the parties’ submissions, the district court issued a second order essentially affirming its first judgment, finding that Firestone did not affect its earlier decision and that it had examined the facts under the proper standard of review. The district court additionally found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, decide — and later review his own decision — what services and supplies were medically necessary; therefore no heightened scrutiny was required under Firestone. Newell appeals the district court’s orders. II. We review the district court’s factual findings for clear error. Fed.R.Civ.P. 52(a); Pullman-Standard, v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982); Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1321 (11th Cir.1989) (per curiam). We subject the district court’s legal conclusions to de novo review. Kirkland v. National Mortgage Network, Inc., 884 F.2d 1367, 1370 (11th Cir.1989); McDonald v. Hillsborough County School Bd., 821 F.2d 1563, 1564 (11th Cir.1987). III. A. We cannot disagree with the district court’s conclusion that “Prudential did not violate ERISA as a matter of law by allowing a Prudential employee to make decisions concerning medical necessity of inpatient care.” Newell, 725 F.Supp. at 1240. Newell argues that Prudential’s procedure of having its own employee, Dr. Goldart, determine what services and supplies will be deemed medically necessary and thus eligible for payment of benefits creates an impermissible conflict of interest in violation of ERISA. ERISA particularly provides, however, that “[njothing in section 1106 of this title [which delineates prohibited transactions involving impermissible conflicts of interest] shall be construed to prohibit any fiduciary from ... serving as a fiduciary in addition to being an officer, employee, agent, or other representative of a party in interest.” 29 U.S.C.A. § 1108(c)(3) (West Supp.1990). ERISA defines a fiduciary as one who “exercises any discretionary authority or discretionary control respecting management of [the] plan or exercises any authority or control respecting management or disposition of its assets ... or [who] has any discretionary authority or discretionary responsibility in the administration of [the] plan.” Id. at § 1002(21)(A)(i), (iii). Thus both Dr. Goldart and Prudential are fiduciaries of the group plan under which Newell was insured. “The term ‘party in interest’ means, as to an employee benefit plan[,] any fiduciary ... of such employee benefit plan_” Id. at § 1002(14)(A). Prudential falls within the definition of a party in interest. ERISA clearly excludes from the realm of the impermissible a person occupying the dual role of fiduciary and employee of a party in interest, such as Dr. Goldart. This court has ruled accordingly in cases presenting similar facts that no violation of ERISA occurred. See, e.g., Local Union 2134, U.M.W. of America v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987) (no inherent conflict of interest where officer of corporation also fiduciary of corporation’s health plan); Deak v. Masters, Mates & Pilots Pension Plan, 821 F.2d 572, 580 (11th Cir.1987) (trustees breached no ERISA duties solely by having fiduciary duties to both the Union or the employer and the plan beneficiaries), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); Evans v. Bexley, 750 F.2d 1498, 1499 (11th Cir.1985) (as fiduciary may also serve as an officer, employee or other representative of a union or employer, logic demands that the fiduciary may “fulfill the concomitant responsibilities”); see also Ashenbaugh v. Crucible Inc., 1975 Salaried Retirement Plan, 854 F.2d 1516, 1531-32 (3d Cir.1988) (plan fiduciaries’ reliance on in-house counsel to aid them in interpreting and administering the plan, rather than hiring independent counsel, not a violation of ERISA), cert. denied, — U.S. —, 109 S.Ct. 3155, 104 L.Ed.2d 1019 (1989). We therefore affirm the district court’s holding that the Prudential procedure of having its own employee make determinations of medical need does not violate ERISA as a matter of law. In rejecting this theory of liability against Prudential, we also dispose of Newell’s request for remand for consideration of class certification based on this misperceived violation of ERISA. B. While we are in accord with the district court in its judgment that “Prudential did not arbitrarily and capriciously deny plaintiff’s claims for benefits after January [25], 1987,” Newell, 725 F.Supp. at 1240, we must reevaluate that conclusion applying the heightened scrutiny for arbitrariness and caprice appropriate in cases involving a conflict of interest rather than the simple arbitrary and capricious standard used by the district court. The Supreme Court in Firestone clarified the standard for reviewing denials of benefits in ERISA plans, holding that a denial of benefits challenged under § 1132(a)(1)(B)[] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.... Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a “factor[ ] in determining whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959). Firestone, 489 U.S. at -, 109 S.Ct. at 956-57. The district court correctly concluded that because the Prudential plan in question gives Prudential some degree of discretion in determining whether charges would be deemed necessary and eligible, Firestone would sanction the continued application of the arbitrary and capricious standard to the instant case. See also Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1558 & n. 1 (11th Cir.1990); Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1138 (11th Cir.1989); Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37, 38 (11th Cir.1989). The district court further found that Prudential did not operate under a conflict of interest by having its employee, Dr. Goldart, render claims decisions; thus the district court saw no need to temper the arbitrary and capricious test to consider a conflict that the court believed did not exist. In this conclusion we differ. This court declared in a most recent decision that [o]ur task is to develop a coherent method for integrating factors such as self-interest into the legal standard for reviewing benefits determinations. This task reaches the height of difficulty in a case such as the one before us, where an insurance company serves as the deci-sionmaking fiduciary for benefits that are paid out of the insurance company’s assets.... ... Because an insurance company pays out to beneficiaries from its own assets rather than the assets of a trust, its fiduciary role lies in perpetual conflict with its profit-making role as a business _ We conclude ... that a “strong conflict of interest [exists] when the fiduciary making a discretionary decision is also the insurance company responsible for paying the claims.... ” Jader v. Principal Mutual Life Ins. Co., 723 F.Supp. 1338, 1343 (D.Minn.1989). The inherent conflict between the fiduciary role and the profit-making objective of an insurance company makes a highly deferential standard of review inappropriate. Brown, at 1561-62. Prudential stands in a position identical to that of Blue Cross in Brown. The district court erred in holding that this case did not warrant increased examination for abuse of discretion. This court crafted a new, more stringent standard of review when a conflict of interest has been shown to exist on the part of the fiduciary rendering benefits decisions, placing the burden on the fiduciary to “prove that its interpretation of plan provisions committed to its discretion was not tainted by self-interest” and to show that it operated “exclusively in the interests of the plan participants and beneficiaries.” Id. at 1566, 1568. This court held that “a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Id. at 1566-67 (footnote omitted). In practice, this standard requires us first to determine the legally correct plan interpretation, and then, if Prudential’s interpretation differs, whether Prudential was arbitrary and capricious in employing a different interpretation. Id. at 1570. The provisions of the PACRS rider require Prudential to make a determination of need for hospitalization upon request. According to the body of the policy, the charges associated with the hospitalization will be considered “needed” by Prudential only insofar as they are services or supplies ordered by a doctor, related to the treatment of the diagnosed ailment, commonly and customarily recognized throughout the doctor’s profession as appropriate in treating the diagnosed ailment, neither educational or experimental in nature, not furnished primarily to further any type of research, and not allocable to the scholastic education or vocational training of the patient. Upon reaching a determination of how many days should be approved as needed for the medical care of the patient’s condition, Prudential must tell the doctor and the hospital of the number of days, if any, approved and confirm this information by written notice to the employee, the doctor and the hospital. No benefits are payable for days of inpatient hospital stay not approved as needed by Prudential; such unpaid days may comprise the entire hospital stay if no days are approved. Newell alleges that Prudential arbitrarily and capriciously failed to abide by its own policy guidelines, first in subjecting Bear’s claim to retro review, and then by denying benefits based on factors Newell maintains are extraneous to the terms of the policy. For his first assertion, Newell relies on language in the insurance booklet provided to Massey employees which states that “[t]he purpose of PACRS is to make sure that, before incurring expenses you understand the length of inpatient hospital stay that will be considered reasonably necessary under the coverages.” Plaintiff’s Exh. 2 at 10 [ (BR 010) ]. Newell interprets this language to mean that Prudential has an obligation to make any decision concerning eligibility for benefits before the hospital care is provided. We disagree. The employee insurance booklet refers the reader to the full PACRS rider for details of the program. The PACRS rider obligates Prudential only to notify the interested parties of how many days it has approved as necessary and warns the reader that any days not so approved are not payable. In the case of Bear’s hospitalization, Prudential approved inpatient care through January 13, 1987, on December 24, 1986, and telephoned Greenleaf and Dr. Schmits with that information on December 30, 1986, well before the pre-authorized days had expired. If in fact Prudential advised the interested parties of the upcoming retro review status and that no further approved days were forthcoming until Bear’s discharge (an issue we address below), it appears to us that Newell had to be aware that any additional days of hospital stay might be considered unnecessary and unpayable. It would seem that the 42 days approved served as some indication of the period that Prudential considered “reasonably necessary under the coverages.” Id. That Prudential eventually approved only 12 of the additional 80 days Bear spent in hospital was a gamble that Newell took, not an abuse of discretion or an arbitrary interpretation of the plan by Prudential. Newell also asserts that Dr. Goldart utilized subjective criteria outside of the tests contained in the policy to determine that much of Bear’s hospital stay was medically unnecessary. We find this charge unsupported by the record, as did the district court. Dr. Goldart in reviewing Bear’s charts from the outset personally questioned the necessity for Bear to undergo inpatient rather than outpatient treatment, as, in his experience, the information in the admissions sheets reflected no problems sufficient to warrant acute inpatient care. Nonetheless, giving the benefit of the doubt to Dr. Schmits, Dr. Goldart approved an initial seven days of hospitalization. The charts accompanying the requests for extension of approved days revealed to Dr. Goldart no need for structured inpatient supervision: Bear was under no restrictions nor was he taking any medications for his depression; his medical evaluations showed no inability to cope, no problems with cooperating with therapy or participating in the activities at Greenleaf, no inability to function normally. Instead the hospital records indicated that Bear was “responding well to treatment, was eating and sleeping well, was participating in group activities and had accepted his alcohol dependency.” Newell, 725 F.Supp. at 1239. His personal professional opinion notwithstanding, Dr. Goldart granted extensions of approved days in the end total-ling 54 days, 12 days longer than the protocol or average length of stay for people diagnosed with Bear’s condition. Dr. Gol-dart determined that any additional days of hospital stay could not be approved as needed since more than 50 days of inpatient treatment for adolescent substance abuse was not “commonly and customarily recognized throughout the Doctor’s profession as appropriate in the treatment of [substance abuse].” Plaintiff’s Exh. 1 at 6. Similarly, Dr. Goldart could not substantiate that Bear’s continued hospitalization was sufficiently related to the treatment of his substance abuse as to be considered needed under the policy. The subsequent APA review of Bear’s case confirmed the correctness of Dr. Goldart’s determination. We conclude that Dr. Goldart did apply the appropriate policy tests of need in making his determination of need and that he did not abuse his discretion in denying benefits after January 25, 1987. C. Finally, we cannot let stand the district court’s finding that Prudential’s failure to follow its own notification procedures did not constitute arbitrary and capricious conduct. First, the court used the more lenient abuse of discretion standard rather than the heightened inquiry befitting the conflict of interest present in this case. Second, we question the facts as found by the district court in reaching its conclusion on this issue. As we previously noted, the PACRS rider to the Prudential policy is described in the group insurance booklet as a means of ensuring that the insured would know before incurring medical expenses how much of a contemplated hospital stay would be covered by insurance benefits. Upon receiving a properly submitted request for a determination of need, Prudential is obliged to make its determination within a reasonably prompt period of time and inform the doctor and the hospital of how many days it has approved as needed. Additionally, Prudential is to confirm this information by written notice to the hospital, the doctor and the insured. The PACRS policy mentions nothing about retro review. The district court found that “[Prudential] did notify the Newells and Greenleaf of the pre-authorization for Joe Newell, Ill’s initial 7 days of hospitalization. However, subsequent written or oral notifications of additional days of certification were not forthcoming. Only on March 9, 1987 did [Prudential] finally meet its standard of affording proper written notification.” Newell, 725 F.Supp. at 1239. Our review of the records discloses that Newell never received any written notice of any of the approved days until he received the March 9, 1987, letter. It also appears that much telephonic dialogue took place before March 9, 1987, between Greenleaf, Schmits or Newell and various Prudential personnel regarding extensions and benefits, although the testimony varies widely about what and when information was given or received. What is certain is that the March 9, 1987, letter was the first proper notice from Prudential to Newell that Newell would be responsible for all the hospital expenses incurred after January 25, 1987. We believe that the undue delay in notifying Newell of what length of hospital stay had been approved or disapproved and the delay in or failure to notify Newell of placing the case in retro review status constitutes arbitrary and capricious conduct on the part of Prudential. The purpose of the PACRS procedure is to allow an insured to forecast what his or her expenditures may be and to calculate what treatment he or she can afford. Had Prudential given Newell timely notice that it could not authorize any days of hospitalization past January 25, 1987, as medically necessary, he could have consulted with Dr. Schmits and Greenleaf to arrive at an alternate form of treatment that would have served Bear’s needs and at the same time would have been eligible for benefits. At the very least Newell could have decided whether or not he could afford to keep Bear in the hospital. Instead, Prudential left Newell hanging, not knowing how many days had been approved or that the type of review had changed from concurrent to retro review. The only means by which Newell could have avoided unwittingly incurring great personal debt would have been to dispute Dr. Schmits’ judgment that it was in Bear’s best interest to be hospitalized and take Bear out of Greenleaf until Prudential got around to informing him of what length of hospital stay it would approve. This court in Brown described an analogous situation of not following a doctor’s instructions to the possible detriment of one’s health in order to wait for an insurance company to authorize benefits as “dangerous if not wholly absurd,” and we agree. Brown, 898 F.2d at 1572. We hold that Prudential abused its discretion in ignoring the policy standards for providing notice to Newell and that Prudential is liable to Newell for the hospital expenses incurred between January 25, 1987, and when Prudential first informed Newell either that it had placed Bear’s case on retro review or that no benefits would be available for hospitalization after January 25, 1987. We are unable to ascertain from the conflicting testimony and documentary evidence in the record what the last day of Prudential’s liability would be; we remand to the district court for factual findings on this point. In accordance with the foregoing, we AFFIRM the district court’s holdings that Prudential did not violate ERISA either in allowing Dr. Goldart to determine the medical necessity of inpatient care or in denying Newell’s claims for benefits after January 25, 1987. We REVERSE the district court’s holding that Prudential provided sufficient notice to Newell, rather holding Prudential liable to Newell for its arbitrary and capricious failure to provide Newell with notice within a reasonable period of time. We REMAND to the district court for factual findings regarding the period of Prudential’s liability and for other proceedings not inconsistent with this opinion. . Elsewhere in the policy, hospital room, board, and all the daily services and supplies furnished by the hospital are encompassed in the definition of services and supplies. Plaintiffs Exh. 1 at 39 [MM R2 1007-(CR '505, BR 505)-!]. . “A civil action may be brought by a participant or beneficiary ... to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C.A. § 1132(a)(1)(B) (West 1985). . In actual practice PACRS makes the determinations of need and communicates the number of approved days to the doctor, hospital and insured. PACRS also transmits this information to the appropriate Prudential claims office that will actually pay out the benefits. For simplicity, we will not differentiate between PACRS and Prudential but will refer to Prudential throughout. . The PACRS rider requires for non-emergency admissions that written requests be sent to Prudential at least a week before the hospital stay starts; telephoned requests can be made one weekday before the beginning of the hospital stay. Emergency admission requests must be made by the second weekday after the patient is admitted to hospital. Extensions of approved days can be requested by phoning Prudential sometime before the already pre-approved days end. From these provisions we conclude that Prudential generally must expect to make a determination of need within 24 to 48 hours of receiving the request in order to inform the hospital and doctor of whether the hospital stay has been approved before the hospital care has been provided. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_caseorigin	034	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. CITY OF MOBILE, ALABAMA, et al. v. BOLDEN et al. No. 77-1844. Argued March 19, 1979 Reargued October 29, 1979— Decided April 22, 1980 Stewart, J., announced the Court’s judgment and delivered an opinion, in which Burgee, C. J., and Powell and RehNquist, JJ., joined. Blacic-muN, J., filed an opinion concurring in the result, post, p. 80. SteveNS, J., filed an opinion concurring in the judgment, post, p. 83. BreNNAN, J., post, p. 94, White, J., post, p. 94, and Marshall, J., post, p. 103, ■filed dissenting opinions. Charles S. Rhyne reargued the cause for appellants. With him on the brief on reargument were C. B. Arendall, Jr., William C. Tidwell III, Fred G. Collins, and William S. Rhyne. With him on the briefs on the original argument were Messrs. Arendall, Collins, and Rhyne, Donald A. Carr, and Martin W. Matzen. J. U. Blacksher reargued the cause for appellees. With him on the briefs were Larry Menefee, Jack Greenberg, and Eric Schnapper. Deputy Assistant Attorney General Turner reargued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General Days, Deputy Solicitor General Wallace, Elinor Hadley Stillman, Brian K. Landsberg, Jessica Dunsay Silver, Dennis J. Dimsey, and Miriam R. Eisenstein. Charles A. Bane, Thomas D. Barr, Norman Redlich, Frank R. Parker, and Robert A. Murphy filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging affirmance. Mr. Justice Stewart announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist joined. The city of Mobile, Ala., has since 1911 been governed by a City Commission consisting of three members elected by the voters of the city at large. The question in this case is whether this at-large system of municipal elections violates the rights of Mobile’s Negro voters in contravention of federal statutory or constitutional law. The appellees brought this suit in the Federal District Court for the Southern District of Alabama as a class action on behalf of all Negro citizens of Mobile. Named as defendants were the city and its three incumbent Commissioners, who are the appellants before this Court. The complaint alleged that the practice of electing the City Commissioners at large unfairly diluted the voting strength of Negroes in violation of § 2 of the Voting Rights Act of 1965, of the Fourteenth Amendment, and of the Fifteenth Amendment. Following a bench trial, the District Court found that the constitutional rights of the appellees had been violated, entered a judgment in their favor, and ordered that the City Commission be disestablished and replaced by a municipal government consisting of a Mayor and a City Council with members elected from single-member districts. 423 F. Supp. 384. The Court of Appeals affirmed the judgment in its entirety, 571 F. 2d 238, agreeing that Mobile’s at-large elections operated to discriminate against Negroes in violation of- the Fourteenth and Fifteenth Amendments, id., at 245, and finding that the remedy formulated by the District Court was appropriate. An appeal was taken to this Court, and we noted probable jurisdiction, 439 U. S. 815. The case was originally argued in the 1978 Term, and was reargued in the present Term. I In Alabama, the form of municipal government a city may adopt is governed by state law. Until 1911, cities not covered by specific legislation were limited to governing themselves through a mayor and city council. In that year, the Alabama Legislature authorized every large municipality to adopt a commission form of government. Mobile established its City Commission in the same year, and has maintained that basic system of municipal government ever since. The three Commissioners jointly exercise all legislative, executive, and administrative power in the municipality. They are required after election to designate one of their number as Mayor, a largely ceremonial office, but no formal provision is made for allocating specific executive or administrative duties among the three. As required by the state law enacted in 1911, each candidate for the Mobile City Commission runs for election in the city at large for a term of four years in one of three numbered posts, and may be elected only by a majority of the total vote. This is the same basic electoral system that is followed by literally thousands of municipalities and other local governmental units throughout the Nation. II Although required by general principles of judicial administration to do so, Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 105; Ashwander v. TVA, 297 U. S. 288, 347 (Brandéis, J., concurring), neither the District Court nor the Court of Appeals addressed the complaint’s statutory claim— that the Mobile electoral system violates § 2 of the Voting Rights Act of 1965. Even a cursory examination of that claim, however, clearly discloses that it adds nothing to the appellees’ complaint. Section 2 of the Voting Rights Act provides: “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.” 79 Stat. 437, as amended, 42 U. S. C. § 1973. Assuming, for present purposes, that there exists a private right of action to enforce this statutory provision, it is apparent that the language of § 2 no more than elaborates upon that of the Fifteenth Amendment, and the sparse legislative history of § 2 makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself. Section 2 was an uncontroversial provision in proposed legislation whose other provisions engendered protracted dispute. The House Report on the bill simply recited that § 2 “grants... a right to be free from enactment or enforcement of voting qualifications... or practices which deny or abridge the right to vote on account of race or color.” H. R. Rep. No. 439, 89th Cong., 1st Sess., 23 (1965). See also S. Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). The view that this section simply restated the prohibitions already contained in the Fifteenth Amendment was expressed without contradiction during the Senate hearings. Senator Dirksen indicated at one point that all States, whether or not covered by the preclearance provisions of § 5 of the proposed legislation, were prohibited from discriminating against Negro voters by § 2, which he termed “almost a rephrasing of the 15th [A]mendment.” Attorney General Katzenbach agreed. See Voting Rights: Hearings on S. 1564.before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 208 (1965). In view of the section’s language and its sparse but clear legislative history, it is evident that this statutory provision adds nothing to the appellees’ Fifteenth Amendment claim. We turn, therefore, to a consideration of the validity of the judgment of the Court of Appeals with respect to the Fifteenth Amendment. Ill The Court’s early decisions under the Fifteenth Amendment established that it imposes but one limitation on the powers of the States. It forbids them to discriminate against Negroes in matters having to do with voting. See Ex parte Yarbrough, 110 U. S. 651, 665; Neal v. Delaware, 103 U. S. 370, 389-390; United States v. Cruikshank, 92 U. S. 542, 555-556; United States v. Reese, 92 U. S. 214. The Amendment’s command and effect are wholly negative. “The Fifteenth Amendment does not confer the right of suffrage upon any one,” but has “invested the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” Id., at 217-218. Our decisions, moreover, have made clear that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose. In Guinn v. United States, 238 U. S. 347, this Court struck down a “grandfather” clause in a state constitution exempting from the requirement that voters be literate any person or the descendants of any person who had been entitled to vote before January 1,1866. It was asserted by way of defense that the provision was immune from successful challenge, since a law could not be found unconstitutional either “by attributing to the legislative authority an occult motive,” or “because of conclusions concerning its operation in practical execution and resulting discrimination arising... from inequalities naturally inhering in those who must come within the standard in order to enjoy the right to vote.” Id., at 359. Despite this argument, the Court did not hesitate to hold the grandfather clause unconstitutional, because it was not “possible to discover any basis in reason for the standard thus fixed other than the purpose” to circumvent the Fifteenth Amendment. Id., at 365. The Court’s more recent decisions confirm the principle that racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation. In Gomillion v. Lightfoot, 364 U. S. 339, the Court held that allegations of a racially motivated gerrymander of municipal boundaries stated a claim under the Fifteenth Amendment. The constitutional infirmity of the state law in that ease, according to the allegations of the complaint, was that in drawing the municipal boundaries the legislature was “solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.” Id., at 341. The Court made clear that in the absence of such an invidious purpose, a State is constitutionally free to redraw political boundaries in any manner it chooses. Id., at 347. In Wright v. Rockefeller, 376 U. S. 52, the Court upheld by like reasoning a state congressional reapportionment statute against claims that district lines had been racially gerrymandered, because the plaintiffs failed to prove that the legislature “was either motivated by racial considerations or in fact drew the districts on racial.lines”; or that the statute “was the product of a state contrivance to segregate on the basis of race or place of origin.” Id., at 56, 58. See also Lassiter v. Northampton Election Bd., 360 U. S. 45; Lane v. Wilson, 307 U. S. 268, 275-277. While other of the Court’s Fifteenth Amendment decisions have dealt with different issues, none has questioned the necessity of showing purposeful discrimination in order to show a Fifteenth Amendment violation. The cases of Smith v. Allwright, 321 U. S. 649, and Terry v. Adams, 345 U. S. 461, for example, dealt with the question whether a State was so involved with racially discriminatory voting practices as to invoke the Amendment’s protection. Although their facts differed somewhat, the question in both cases was whether the State was sufficiently implicated in the conduct of racially exclusionary primary elections to make that discrimination an abridgment of the right to vote by a State. Since the Texas Democratic Party primary in Smith v. Allwright was regulated by statute, and only party nominees chosen in a primary were placed on the ballot for the general election, the Court concluded that the state Democratic Party had become the agency of the State, and that the State thereby had “endorse [d], adopt[ed] and enforce[d] the discrimination against Negroes, practiced by a party.” 321 U. S., at 664. Terry v. Adams, supra, posed a more difficult question of state involvement. The primary election challenged in that case was conducted by a county political organization, the Jaybird Association, that was neither authorized nor regulated under state law. The candidates chosen in the Jaybird primary, however, invariably won in the subsequent Democratic primary and in the general election, and the Court found that the Fifteenth Amendment had been violated. Although the several supporting opinions differed in their formulation of this conclusion, there was agreement that the State was involved in the purposeful exclusion of Negroes from participation in the election process. The appellees have argued in this Court that Smith v. Allwright and Terry v. Adams support the conclusion that the at-large system of elections in Mobile is unconstitutional, reasoning that the effect of racially polarized voting in Mobile is the same as that of a racially exclusionary primary. The only characteristic, however, of the exclusionary primaries that offended the Fifteenth Amendment was that Negroes were not permitted to vote in them. The difficult question was whether the “State ha[d] had a hand in” the patent discrimination practiced by a nominally private organization. Terry v. Adams, supra, at 473 (opinion of Frankfurter, J.). The answer to the appellees’ argument is that, as the District Court expressly found, their freedom to vote has not been denied or abridged by anyone. The Fifteenth Amendment does not entail the right to have Negro candidates elected, and neither Smith v. Allwright nor Terry v. Adams contains any implication to the contrary. That Amendment prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote “on account of race, color, or previous condition of servitude.” Having found that Negroes in Mobile “register and vote without hindrance,’’¿the District Court and Court of Appeals were in error in believing that the appellants invaded the protection of that Amendment in the present case. IV The Court of Appeals also agreed with the District Court that Mobile’s at-large electoral system violates the Equal Protection Clause of the Fourteenth Amendment. There remains for consideration, therefore, the validity of its judgment on that score. A The claim that at-large electoral schemes unconstitutionally deny to some persons the equal protection of the laws has been advanced in numerous cases before this Court. That contention has been raised most often with regard to multi-member constituencies within a state legislative apportionment system. The constitutional objection to multimember districts is not and cannot be that, as such, they depart from apportionment on a population basis in violation of Reynolds v. Sims, 377 U. S. 533; and its progeny. Rather the focus in such cases has been on the lack of representation multimem-ber districts afford various elements of the voting population in a system of representative legislative democracy. “Criticism [of multimember districts] is rooted in their winner-take-all aspects, their tendency to submerge minorities..., a general preference for legislatures reflecting community interests as closely as possible and disenchantment with political parties and elections as devices to settle policy differences between contending interests.” Whitcomb v. Chavis, 403 U. S. 124, 158-159. Despite repeated constitutional attacks upon multimember legislative districts, the Court has consistently held that they are not unconstitutional per se, e. g., White v. Regester, 412 U. S. 755; Whitcomb v. Chavis, supra; Kilgarlin v. Hill, 386 U. S. 120; Burns v. Richardson, 384 U. S. 73; Fortson v. Dorsey, 379 U. S. 433. We have recognized, however, that such legislative apportionments could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities. See White v. Regester, supra; Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To prove such a purpose it is not enough to show that the group allegedly discriminated against has not elected representatives in proportion to its numbers. White v. Regester, supra, at 765-766; Whitcomb v. Chavis, 403 U. S., at 149-150. A plaintiff must prove that the disputed plan was “conceived or operated as [a] purposeful devic[e] to further racial... discrimination,” id., at 149. This burden of proof is simply one aspect of the basic principle that only if there is purposeful discrimination can there be a violation of the Equal Protection Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U. S. 229; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252; Personnel Administrator of Mass. v. Feeney, 442 U. S. 256. The Court explicitly indicated in Washington v. Davis that this principle applies to claims of racial discrimination affecting voting just as it does to other claims of racial discrimination. Indeed, the Court’s opinion in that case viewed Wright v. Rockefeller, 376 U. S. 52, as an apt illustration of the principle that an illicit purpose must be proved before a constitutional violation can be found. The Court said: “The rule is the same in other contexts. Wright v. Rockefeller, 376 U. S. 52 (1964), upheld a New York congressional apportionment statute against claims that district lines had been' racially gerrymandered. The challenged districts were made up predominantly of whites or of minority races, and their boundaries were irregularly drawn. The challengers did not prevail because they failed to prove that the New York Legislature 'was either motivated by racial considerations or in fact drew the districts on racial lines’; the plaintiffs had not shown that the statute 'was the product of a state contrivance to segregate on the basis of race or place of origin.’ Id., at 56, 58. The dissenters were in agreement that the issue was whether the 'boundaries... were purposefully drawn on racial lines.’ Id., at 67.” Washington v. Davis, supra, at 240. More recently, in Arlington Heights v. Metropolitan Housing Dev. Corp., supra, the Court again relied on Wright v. Rockefeller to illustrate the principle that “‘[pjroof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” 429 U. S., at 265. Although dicta may be drawn from a few of the Court’s earlier opinions suggesting that disproportionate effects alone may establish a claim of unconstitutional racial vote dilution, the fact is that such a view is not supported by any decision of this Court. More importantly, such a view is not consistent with the meaning of the Equal Protection Clause as it has been understood in a variety of other contexts involving alleged racial discrimination. Washington v. Davis, supra (employment); Arlington Heights v. Metropolitan Housing Dev. Corp., supra (zoning); Keyes v. School District No. 1, Denver, Colo., 413 U. S. 189, 208 (public schools); Akins v. Texas, 325 U. S. 398, 403-404 (jury selection). In only one case has the Court sustained a claim that multi-member legislative districts unconstitutionally diluted the voting strength of a discrete group. That case was White v. Regester. There the Court upheld a constitutional challenge by Negroes and Mexiean-Americans to parts of a legislative reapportionment plan adopted by the State of Texas. The plaintiffs alleged that the multimember districts for the two counties in which they resided minimized the effect of their votes in violation of the Fourteenth Amendment, and the Court held that the plaintiffs had been able to “produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group [s] in question.” 412 U. S., at 766, 767. In so holding, the Court relied upon evidence in the record that included a long history of official discrimination against minorities as well as indifference to their needs and interests on the part of white elected officials. The Court also found in each county additional factors that restricted the access of minority groups to the political process. In one county, Negroes effectively were excluded from the process of slating candidates for the Democratic Party, while the plaintiffs in the other county were Mexican-Americans who “suffer[ed] a cultural and language barrier” that made “participation in community processes extremely difficult, particularly... with respect to the political life” of the county. Id., at 768 (footnote omitted). White v. Regester is thus consistent with “the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose,” Washington v. Davis, 426 U. S., at 240. The Court stated the constitutional question in White to be whether the “multimember districts [were] being used invidiously to cancel out or minimize the voting strength of racial groups,” 412 U. S., at 765 (emphasis added), strongly indicating that only a purposeful dilution of the plaintiffs’ vote would offend the Equal Protection Clause. Moreover, much of the evidence on which the Court relied in that case was relevant only for the reason that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 264-265. Of course, “[t]he impact of the official action— whether it ‘bears more heavily on one race than another,’ Washington v. Davis, supra, at 242 — may provide an important starting point.” Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 266. But where the character of a law is readily explainable on grounds apart from race, as would nearly always be true where, as here, an entire system of local governance is brought into question, disproportionate impact alone cannot be decisive, and courts must look to other evidence to support a finding of discriminatory purpose. See ibid.; Washington v. Davis, supra, at 242. We may assume, for present purposes, that an at-large election of city officials with all the legislative, executive, and administrative power of the municipal government is constitutionally indistinguishable from the election of a few members of a state legislative body in multimember districts — although this may be a rash assumption. But even making this assumption, it is clear that the evidence in the present case fell far short of showing that the appellants “conceived or operated [a]' purposeful devic[e] to further racial... discrimination.” Whitcomb v. Chavis, 403 U. S., at 149. The District Court assessed the appellees’ claims in light of the standard that had been articulated by the Court of Appeals for the Fifth Circuit in Zimmer v. McKeithen, 485 F. 2d 1297. That case, coming before Washington v. Davis, 426 U. S. 229, was quite evidently decided upon the misunderstanding that it is not necessary to show a discriminatory purpose in order to prove a violation of the Equal Protection Clause — that proof of a discriminatory effect is sufficient. See 485 F. 2d, at 1304-1305, and n. 16. In light of the criteria identified in Zimmer, the District Court based its conclusion of unconstitutionality primarily on the fact that no Negro had ever been elected to the City Commission, apparently because of the pervasiveness of racially polarized voting in Mobile. The trial court also found that city officials had not been as responsive to the interests of Negroes as to those of white persons. On the basis of these findings, the court concluded that the political processes in Mobile were not equally open to Negroes, despite its seemingly inconsistent findings that there were no inhibitions against Negroes becoming candidates, and that in fact Negroes had registered and voted without hindrance. 423 F. Supp., at 387. Finally, with little additional discussion, the District Court held that Mobile’s at-large electoral system was invidiously discriminating against Negroes in violation of the Equal Protection Clause. In affirming the District Court, the Court of Appeals acknowledged that the Equal Protection Clause of the Fourteenth Amendment reaches only purposeful discrimination, but held that one way a plaintiff may establish this illicit purpose is by adducing evidence that satisfies the criteria of its decision in Zimmer v. McKeithen, supra. Thus, because the appellees had proved an “aggregate” of the Zimmer factors, the Court of Appeals concluded that a discriminatory purpose had been proved. That approach, however, is inconsistent with our decisions in Washington v. Davis, supra, and Arlington Heights, supra. Although the presence of the indicia relied on in Zimmer may afford some evidence of a discriminatory purpose, satisfaction of those criteria is not of itself sufficient proof of such a purpose. The so-called Zimmer criteria upon which the District Court and the Court of Appeals relied were most assuredly insufficient to prove an unconstitutionally discriminatory purpose in the present case. First, the two courts found it highly significant that no Negro had been elected to the Mobile City Commission. From this fact they concluded that the processes leading to nomination and election were not open equally to Negroes. But the District Court’s findings of fact Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
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). POOLE v. UNITED STATES. No. 5464. Circuit Court of Appeals, Fourth Circuit. Jan. 28, 1947. David C. Rice, of Richmond, Va., for appellant. George R. Humrickhouse, Asst. U. S. Atty., of Richmond, Va. (Harry H. Holt,. Jr., U. S. Atty., of Hampton, Va., on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. SOPER, Circuit Judge. Robert Evans Poole, a member of the sect of Jehovah’s Witnesses, registered on February 16, 1942, as required by the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq. and was classified as a conscientious objector. In subsequent proceedings under the statute he was ordered to report, and did report on January 7, 1943, to a civilian public service camp to-which he was assigned, and remained in. this camp and in other camps to which he was transferred until June 1, 1945, when: he was granted a furlough expiring June 5, 1945. He failed to return from this furlough and on October 1, 1945, was indicted’ for violating Section 11 of the statute as amended, 50 U.S.C.A.Appendix § 311, by failing to remain in the camp until lawfully transferred or released. Upon his arraignment he pleaded not guilty. He was offered the services of an-attorney by the District Judge but refused the offer stating that he wished to defend: himself. On December 5, 1945,' he was-tried before a jury which found him guilty as charged and he was committed by the judge to the custody of the Attorney General for imprisonment for a period of two years. On this appeal, in which he is represented by an attorney appointed by the court, the only substantial error charged is that the judge wrongfully held that the only issue for determination was whether the defendant violated the regulations by absenting himself from the camp without authorization. During the trial the defendant repeatedly offered to show that he was improperly classified as a conscientious objector since he had been an ordained minister ■of religion since 1935 and as such was exempted from training and service under the Act. In- making this defense the defendant stated that he had presented the facts to his ■local hoard and that there was no evidence to the contrary, but that the board arbitrarily denied a judicial hearing and hence lacked jurisdiction to send him to the camp, lie also moved for ail adjournment of the hearing pending the decision by the Supreme Court in Estep v. United States and Smith v. United States, 327 U.S. 114, 66 S.Ct. 423, which had been argued hut had not then been decided. The District Judge denied the motion for continuance and excluded the offered defense, since he was of opinion that the case was ruled by the decision in Faibo v. United Slates, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Considerable uncertainty lias prevailed during the administration of the Selective Service System as to the authority of the courts to review the validity of the classification orders of the local boards when challenged by the registrants. The statute makes no explicit provision for such review hut expressly provides that the decisions of the local boards shall be final. 50 U.S.C.A.Appendix, § 310(a) (2). It was held by this court in Goff v. United States, 4 Cir., 135 F.2d 610, that the total invalidity of an order to report for induction may be shown not only in habeas corpus proceedings but in defense of a criminal prosecution based on disobedience to the order. Opinion was not uniform, however, as to the stage of the selective service process at which a registrant could secure a review of the action of the board by the courts. See Rase v. United States, 6 Cir., 129 F.2d 204, 207; Ex parte Catanzaro, 3 Cir., 138 F.2d 100, 101; United States v. Kauten, 2 Cir., 133 F.2d 703, 706, 707; United States v. Grieme, 3 Cir., 128 F.2d 811, 814, 815; Steele v. United States, 8 Cir., 133 F.2d 1015; Johnson v. United States, 8 Cir., 126 F.2d 242. The Supreme Court in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, held that in a prosecution under Section 11 of the Act for willful failure of a registrant classified as a conscientious objector to obey tile order of the local board to report for assignment to work of national importance, it is no defense that he was wrongfully classified as a conscientious objector rather than as a minister of religion. The court was of the opinion that even if judicial review to test the validity of the classification was required by the Constitution, it was not required prior to the completion of the selective service process by the acceptance o'f the registrant by the civilian public service camp. In Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917, it was held that a registrant who had reported to an induction center and had been accepted but had refused to take the oath of induction was not subject to court-martial for refusal to obey the orders of the military authorities but was subject solely to civil jurisdiction. The implication of these decisions, however, was far from clear, and they were followed by the rulings in United States v. Estep, 3 Cir., 150 F.2d 768, and Smith v. United States, 4 Cir., 148 F.2d 288, wherein it was held that a registrant who reports for induction hut refuses to submit thereto, has no right to a review of the validity of the classification of the local board in a prosecution for failure to obey the order of induction. On certiorari the decisions in these cases were reversed. See Estep v. United States, 327 U.S. 114, 66 S.Ct. 423. Therein the Supreme Court held that the defendant in such a case may show that the hoard acted beyond its jurisdiction in rejecting the claim of exemption and classifying the registrant as available for military service. The Supreme Court said, 327 U.S. at page 122, 66 S.Ct. at page 427 that while the courts are not to weigh the evidence to determine whether the classification of the board is correct, the question of jurisdiction is reached and may be considered if there is no basis in fact for the classification given by the board. The latest case in this category, Gibson v. United States; 67 S.Ct. 301, was decided by the Supreme Court on December 23, 1946, and thereby the decision of the Eight Circuit, 149 F.2d 751, which relied on Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, and Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917, was reversed. Gibson, like 'the defendant here, claimed exemption as a minister of religion but was classified as a conscientious objector and in obedience to the order of the board, reported to a selective service camp. He took this action in order to exhaust his administrative remedies and remained in the camp for five days and then departed without leave. He was indicted under Section 11 of the Act and offered in his defense various grounds going to the validity of the classification. The Supreme Court held that Gibson had not lost his right to make the defense by submitting to induction in the camp and hence he was entitled to the opportunity to show that the local board exceeded its jurisdiction. This case is in all respects like the present controversy but for the circumstance that Gibson remained in the camp only five days, intending at no time to submit to the jurisdiction or authority of the camp but only to make sure that the administrative process was complete, whereas the defendant in the pending case stayed in the camp two and a half years. The Supreme Court carefully refrained- from passing on such a situation saying [67 S.Ct. 312] “We express no opinion concerning whether a different result might follow for one in Gibson’s position if he should remain at the camp for a substantially longer period and then depart without leave.” The court also pointed out (note 30) that the Government made no contention that Gibson waived his rights by submitting to induction. • Notwithstanding this difference of fact, we are of the opinion that the Gibson decision furnishes the guide to be followed in the pending appeal. It is contended by the United States that the appellant completely submitted to the jurisdiction of the camp and thereby waived all right to dispute the validity of his classification. For a number of reasons, we are constrained to reject this view. During the trial in the-District Court the appellant stated that after he had exhausted his efforts to secure exemption from the local board he-went to the camp with the intent to continue the contest but was there subjected to the camp regulations and denied reclassification on the ground that he had accepted the status of a conscientious objector ; and thereupon the judge stated without contradiction that it was conceded by the Government that the appellant had constantly sought 4-d classification, that is,, exemption from the Act. Moreover, apart from the concession, it is difficult to perceive how the appellant can be held to have completely and knowingly waived a legal defense to an. accusation of crime when the courts themselves were in disagreement as to the right of a registrant to test the validity of his classification in a prosecution for a crime, and as to the precise point in the administrative process when the right, if it existed, should be asserted. In view of this uncertainty, it cannot be justly said that the submission of the registrant to the authority of the camp for a substantial period amounted to the intentional relinquishment of a known right. In addition, it is not without significance that the appellant left the camp in order to reassert his right to judicial review of his classification when the Jehovah’s Witnesses in the Smith and Estep cases were pressing their claims anew upon the attention of the courts and applications to the Supreme Court for cer-tiorari were under way. The conclusion we have reached is consistent with the rationale of the opinion of the Supreme Court in the Gibson case. The Government there contended that the defendant subjected himself to the camp’s jurisdiction, and in doing so, irrevocably foreclosed himself from defending against the charge of desertion on the ground that his classification was invalid. This position of the Government was founded upon analogy to the cases which hold that one who lias been inducted into the armed forces, though wrongfully, becomes subject to military jurisdiction and can secure release only by resort to habeas corpus. The court held, however, that there were compelling reasons why the analogy does not hold true. It pointed out the important differences between the two situations in that in the one the person concerned crosses the vast gulf between civil and military jurisdiction, with all the attendant consequences of change in status and rights, whereas in the other no such chasm is traversed. Speaking of a registrant, who is classified as a. conscientious objector and remains a civilian, the court said: “There is therefore no such profound change in rights, duiies and status as occurs when one crosses the line between civil and military jurisdicton by being ‘actually inducted’ under the rule of Billings v. Truesdell, supra. It was this change and the consequences it entailed together with the statute’s command that no one should be tried by military or naval court martial in any case arising under the Act until he had been actually inducted, which we there held to require placing the line precisely, not only for exhausting administrative remedies under the Falbo rule, but also for marking the point of actual induction at which the registrant’s right ends to choose between going forward into the service and inctirring the civil liability for breach of that duty. * * * * * * “Moreover, in the case of one entering the armed forces, the loss of civil rights, including those of recourse to the civil courts other than by way of habeas corpus, results altogether by virtue of the change from civilian to military status. The reasons underlying those rulings do not apply in the case of one who does not undergo that change, remains at all times a civilian, subject only to civilian duties and to civil penalties for violating them. There is not the same necessity or compulsion in such a case for bringing about forfeiture of civilian rights, including remedies for questioning the validity of the order the registrant is charged with violating. That compulsion arises from the necessity for preventing interruption of military processes by intrusion of the civil courts beyond the essential minimum of keeping open the habeas corpus channel to show that the military authority has exceeded its jurisdiction in dealing with the individual. It is on this foundation that the forfeiture of other civil remedies is held to take place.” This reasoning, it seems to us, is as applicable to one who stays a long time in the civilian camp as to one who leaves promptly after his induction. The judgment of the District Court must therefore be reversed and the case remanded for a new trial at which the court will observe the rule that the findings of the local board must be accepted as final unless it appears that they had no basis in fact or that the board arbitrarily deprived the registrant of a hearing in accordance with the requirements of due process. Reversed and remanded. The uncertainty was augmented by changes in the regulations and by differences of legal opinion as to the interpretation and effect of the changes. See the discussion in Gibson v. United States, supra. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_petitioner	001	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. ASHCROFT, FORMER ATTORNEY GENERAL, et al. v. IQBAL et al. No. 07-1015. Argued December 10, 2008 Decided May 18, 2009 Former Solicitor General Garre argued the cause for petitioners. With him on the briefs were Assistant Attorney General Katsas, Deputy Assistant Attorney General Cohn, Curtis E. Gannon, Barbara L. Herwig, and Robert M. Loeb. Michael L. Martinez, David E. Bell, and Matthew F. Scarlato filed briefs for Dennis Hasty as respondent under this Court’s Rule 12.6 urging reversal. Brett M. Schuman, Lauren J. Resnick, and Thomas D Warren filed briefs for Michael Rolince et al. as respondents under this Court’s Rule 12.6 urging reversal. Alexander A. Reinert argued the cause for respondents. With him on the brief for respondent Javaid Iqbal were Joan M. Magoolaghan, Elizabeth L. Koob, and Rima J. Oken Daniel J. Popeo, Richard A. Samp, and Paul J. Larkin, Jr., filed a brief for William P. Barr et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Association for Justice by Stephen B. Pershing and Les Weisbrod; for the Japanese American Citizens League et al. by John E. Higgins; for National Civil Rights Organizations by Harold Hongju Koh and Cristóbal Joshua Alex; for Professors of Civil Procedure and Federal Practice by Allan Ides and David L. Shapiro; for the Sikh Coalition et al. by Brian E. Robinson; and for Ibrahim Turkmen et al. by Michael Winger. Justice Kennedy delivered the opinion of the Court. Javaid Iqbal (hereinafter respondent) is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners’ official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court’s decision. Respondent’s account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights. We hold respondent’s pleadings are insufficient. I Following the 2001 attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 “the FBI had received more than 96,000 tips or potential leads from the public.” Dept, of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1,11-12 (Apr. 2003), http://www.usdoj.gov/oig/ special/0306/full.pdf?bcsi_scan_61073ECQF74759AD=0& bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court’s case file). In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. Id., at 1. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be “of ‘high interest’ ” to the investigation. Id., at 111. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. Id., at 112-113. Respondent was one of the detainees. According to his complaint, in November 2001 agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Iqbal v. Hasty, 490 F. 3d 143, 147-148 (CA2 2007). Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person “of high interest” to the September 11 investigation and in January 2002 was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Id., at 148. As the facility’s name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prisons regulations. Ibid. ADMAX SHU detainees were kept in lock-down 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Ibid. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. Id., at 149. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 “John Doe” federal corrections officers. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners — officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04-CV-1809 (JG)(JA), ¶¶ 10-11, App. to Pet. for Cert. 157a (hereinafter Complaint). The 21-cause-of-action complaint does not challenge respondent’s arrest or his confinement in the MDC’s general prison population. Rather, it concentrates on his treatment while confined to the ADMAX SHU. The complaint sets forth various claims against defendants who are not before us. For instance, the complaint alleges that respondent’s jailors “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification, id., ¶ 113, at 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, id., ¶¶ 143-145, at 182a; and refiised to let him and other Muslims pray because there would be “[n]o prayers for terrorists,” id., ¶ 154, at 184a. The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men... as part of its investigation of the events of September 11.” Id., ¶ 47, at 164a. It further alleges that “[t]he policy of holding post-September-llth detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶ 69, at 168a. Lastly, the complaint posits that petitioners “each knew of, condoned, and willfully and maliciously agreed to subject” respondent to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id., ¶ 96, at 172a-173a. The pleading names Ashcroft as the “principal architect” of the policy, id., ¶ 10, at 157a, and identifies Mueller as “instrumental in [its] adoption, promulgation, and implementation,” id., ¶ 11, at 157a. Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent’s complaint as true, the court held that “it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against” petitioners. Id., at 136a-137a (relying on Conley v. Gibson, 355 U. S. 41 (1957)). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss. The Court of Appeals considered Twombly’s applicability to this case. Acknowledging that Twombly retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals’ opinion discussed at length how to apply this Court’s “standard for assessing the adequacy of pleadings.” 490 F. 3d, at 155. It concluded that Twombly called for a “flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible” Id., at 157-158. The court found that petitioners’ appeal did not present one of “those contexts” requiring amplification. As a consequence, it held respondent’s pleading adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law. Id., at 174. Judge Cabranes concurred. He agreed that the majority’s “discussion of the relevant pleading standards reflected] the uneasy compromise... between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.” Id., at 178 (internal quotation marks and citations omitted). Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officials — entitled to assert the defense of qualified immunity and charged with responding to “a national and international security emergency unprecedented in the history of the American Republic” — to the burdens of discovery on the basis of a complaint as nonspecific as respondent’s. Id., at 179. Reluctant to vindicate that concern as a member of the Court of Appeals, ibid., Judge Cabranes urged this Court to address the appropriate pleading standard “at the earliest opportunity,” id., at 178. We granted certiorari, 554 U. S. 902 (2008), and now reverse. II We first address whether the Court of Appeals had subject-matter jurisdiction to affirm the District Court’s order denying petitioners’ motion to dismiss. Respondent disputed subject-matter jurisdiction in the Court of Appeals, but the court hardly discussed the issue. We are not free to pretermit the question. Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt. Arbaugh v.Y & H Corp., 546 U. S. 500, 514 (2006) (citing United States v. Cotton, 535 U. S. 625, 630 (2002)). According to respondent, the District Court’s order denying petitioners’ motion to dismiss is not appealable under the collateral-order doctrine. We disagree. A With exceptions inapplicable here, Congress has vested the courts of appeals with “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U. S. C. § 1291. Though the statute’s finality requirement ensures that “interlocutory appeals — appeals before the end of district court proceedings — are the exception, not the rule,” Johnson v. Jones, 515 U. S. 304, 309 (1995), it does not prevent “review of all prejudgment orders,” Behrens v. Pelletier, 516 U. S. 299, 305 (1996). Under the collateral-order doctrine a limited set of district-court orders are reviewable “though short of final judgment.” Ibid. The orders within this narrow category “are immediately appeal-able because they ‘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 case is adjudicated.’” Ibid, (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949)). A district-court decision denying a Government officer’s claim of qualified immunity can fall within the narrow class of appealable orders despite “the absence of a final judgment.” Mitchell v. Forsyth, 472 U. S. 511, 530 (1985). This is so because qualified immunity — which shields Government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982) — is both a defense to liability and a limited “entitlement not to stand trial or face the other burdens of litigation.” Mitchell, 472 U. S., at 526. Provided it “turns on an issue of law,” id., at 530, a district-court order denying qualified immunity “ ‘conclusively determine^]’ ” that the defendant must bear the burdens of discovery; is “conceptually distinct from the merits of the plaintiff’s claim”; and would prove “effectively unreviewable on appeal from a final judgment,” id., at 527-528 (citing Cohen, supra, at 546). As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen. But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of § 1291. Behrens, 516 U. S., at 307. B Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid. Respondent says that “a qualified immunity appeal based solely on the complaint's failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. In Hartman v. Moore, 547 U. S. 250 (2006), the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in Hartman concerned the elements a plaintiff “must plead and prove in order to win” a First Amendment retaliation claim. Id., at 257, n. 5. Similarly, two Terms ago in Wilkie v. Robbins, 551 U. S. 537 (2007), the Court considered another interlocutory order denying qualified immunity. The legal issue there was whether a Bivens action can be employed to challenge interference with property rights. 551 U. S., at 549, n. 4. These cases cannot be squared with respondent’s argument that the collateral-order doctrine restricts appellate jurisdiction to the “ultimate issu[e]” whether the legal wrong asserted was a violation of clearly established law while excluding the question whether the facts pleaded establish such a violation. Iqbal Brief 15. Indeed, the latter question is even more clearly within the category of appealable decisions than the questions presented in Hartman and Wilkie, since whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded. In that sense the sufficiency of respondent’s pleadings is both “inextricably intertwined with,” Swint v. Chambers County Comm’n, 514 U. S. 35, 51 (1995), and “directly implicated by,” Hartman, supra, at 257, n. 5, the qualified-immunity defense. Respondent counters that our holding in Johnson, 515 U. S. 304, confirms the want of subject-matter jurisdiction here. That is incorrect. The allegation in Johnson was that five defendants, all of them police officers, unlawfully beat the plaintiff. Johnson considered “the appealability of a portion of” the District Court’s summary judgment order that, “though entered in a ‘qualified immunity’ case, determine[d] only” that there was a genuine issue of material fact that three of the defendants participated in the beating. Id., at 313. In finding that order not a “final decision” for purposes of § 1291, the Johnson Court cited Mitchell for the proposition that only decisions turning “ ‘on an issue of law’ ” are subject to immediate appeal. 515 U. S., at 313. Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson, it is a “fact-related” legal inquiry. Id., at 314. To conduct it, a court of appeals may be required to consult a “vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials.” Id., at 316. That process generally involves matters more within a district court’s ken and may replicate inefficiently questions that will arise on appeal following final judgment. Ibid. Finding those concerns predominant, Johnson held that the collateral orders that are “final” under Mitchell turn on “abstract,” rather than “fact-based,” issues of law. 515 U. S., at 317. The concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings. True, the categories of “fact-based” and “abstract” legal questions used to guide the Court’s decision in Johnson are not well defined. Here, however, the order denying petitioners’ motion to dismiss falls well within the latter class. Reviewing that order, the Court of Appeals considered only the allegations contained within the four corners of respondent’s complaint; resort to a “vast pretrial record” on petitioners’ motion to dismiss was unnecessary. Id., at 316. And determining whether respondent’s complaint has the “heft” to state a claim is a task well within an appellate court’s core competency. Twombly, 550 U. S., at 557. Evaluating the sufficiency of a complaint is not a “fact-based” question of law, so the problem the Court sought to avoid in Johnson is not implicated here. The District Court’s order denying petitioners’ motion to dismiss is a final decision under the collateral-order doctrine over which the Court of Appeals had, and this Court has, jurisdiction. We proceed to consider the merits of petitioners’ appeal. Ill In Twombly, supra, at 553-554, the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity. In Bivens — proceeding on the theory that a right suggests a remedy — this Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 66 (2001). Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability “to any new context or new category of defendants.” 534 U. S., at 68. See also Wilkie, 551 U. S., at 549-550. That reluctance might well have disposed of respondent’s First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U. S. 228 (1979), we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas, 462 U. S. 367 (1983). Petitioners do not press this argument, however, so we assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens. In the limited settings where Bivens does apply, the implied cause of action is the “federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U. S. C. § 1983.” Hartman, 547 U. S., at 254, n. 2. Cf. Wilson v. Layne, 526 U. S. 603, 609 (1999). Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal Brief 46 (“[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior”). See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691 (1978) (finding no vicarious liability for a municipal “person” under 42 U. S. C. § 1983); see also Dunlop v. Munroe, 7 Cranch Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Harold LIDDELL, Plaintiff-Appellant, v. Noel SMITH, William Theofanopoulos, Sofia Theofanopoulos, and Noel Smith Development Company, Ltd., (formerly known as Midwest Construction Co., Ltd.), Defendants-Appellees. No. 14778. United States Court of Appeals Seventh Circuit. April 22, 1965. Rehearing Denied May 24, 1965. Ronald W. Polston, Craig & Craig, Mt. Vernon, 111., for plaintiff-appellant. Stewart A. Pearce, Carmi, 111., Gerald C. Quindry, Richard C. Cochran, Pair-field, 111., John P. Wham, Centralia, 111., Kern & Pearce, Carmi, 111., Wham & Wham, Centralia, 111., for appellees. Marshall, Feiger, Robison & Quindry, Loy & Cochran, Fairfield, 111., for appellees Theofanopoulos. Before SCHNACKENBERG and KILEY, Circuit Judges, and GRANT, District Judge. GRANT, District Judge. Plaintiff Liddell, defendant Noel Smith, and one James Castle (not a party hereto) entered into oral agreement to combine their talents and money for the purpose of buying and clearing timber land in Wayne County, Illinois. As a part of that program they incorporated Sherwood Land Company to hold title to any such lands. Defendant Noel Smith was the sole owner of defendant Noel Smith Development Company, Ltd., (formerly known as Midwest Construction Co., Ltd.). Plaintiff had hired defendants Theofanopoulos to assist in the clearance of certain of this land. Following considerable earlier litigation which involved, in turn, all of the parties hereto, this action was brought in the District Court to recover money damages, charging a malicious conspiracy to defraud the plaintiff. Defendants’ Motions to Dismiss or for Summary Judgment, raised the defense of res judicata, on the theory that the facts alleged in this case were alleged and decided in the prior actions (except the allegations of perjury noted below). In entering judgment for the defendants, the able District Judge found that “everything arising out of the * * * transactions was litigated, or could have been properly presented, in the cases decided in the Circuit Court of Wayne County, Illinois.” We agree and we affirm. The District Court’s careful summary of the allegations in the complaint and amended complaint consumed 11 pages of the Appendix to Appellant’s brief. No useful purpose would be served by encumbering this record with a detailed recital of that long history of litigation which included six prior lawsuits brought by various of these parties — five actions in the Circuit Court of Wayne County, Illinois, and one prior action in the United States District Court for the Eastern District of Illinois. In affirming we quote with approval the following from the opinion of the District Court: “It was necessary to go into great detail in listing the allegations of the complaint and of the amended complaint because of the nature of the answer timely filed by the defendants in this cause. There is a special defense raised in the answer filed by all the defendants which goes to the very heart of the question of whether this court should grant the defendants’ motion to dismiss or their motion for summary judgment. This special defense, in the words of the answer is: “ ‘All of the issues which are alleged as a basis for the injunctive relief prayed, with the exception of the allegations pertaining to the levy and advertisement for sale, are matters already within the jurisdiction of the Circuit Court of Wayne County, Illinois, in complaints filed in said Court by the plaintiff in this case, many of which issues have already been decided by the Circuit Court of Wayne County, Illinois, and are, therefore, necessarily outside the jurisdiction of this honorable Court.’ “It is obvious * * * that Harold Liddell chose the Circuit Court of Wayne County as his forum when he filed two cases there and failed to attempt to remove the case in which he was the defendant to the United States District Court for the Eastern District of Illinois. “This Court is of the opinion that the motions of the defendants must be allowed on the theory of res judicata. Ees judicata is a rule of universal law pervading every well regulated system of jurisprudence, and is put on two grounds embodied in various maxims of the common law; the one, public policy and necessity which makes it to the interest of the State that there should be an end to the litigation — interest republicae- ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause — nemo debet bis vexari pro eadem causa. 50 C.J.S. Judgments § 592 (citing numerous cases). There is no doubt in this Court’s opinion that the defendants in this case would be sorely vexed if they had to again litigate the same factual situation that was before the Circuit Court of Wayne County, Illinois. The essential elements of res judicata have been defined by the courts of Illinois, and by the Federal Courts in this Circuit as identity of parties, of subject matter and of cause of action. De Met’s Inc. v. Insull, 122 F.2d 755 (7th Cir. 1941); certiorari denied, 315 U.S. 806, 62 S.Ct. 638, 86 L.Ed. 1205, rehearing denied 315 U.S. 829, 62 S.Ct. 904, 86 L.Ed. 1224; Leopold v. City of Chicago, 150 Ill. 568, 37 N.E. 892; People ex rel. Gustus v. Swan, 382 Ill. 184, 46 N.E.2d 1003. In the present case these essential elements all are present; the same parties have prosecuted or defended the very same issues (with exception to be noted later), in the state courts of Illinois. The complaint of Liddell filed in this court goes into somewhat more detail and' is in stronger language than the complaints filed in Wayne County, but this does not aid his position. While these details, as just stated, were not developed in the state court complaints, it must be noted that they all evolved out of facts and circumstances of the formation of Sherwood Land Company, and its endeavors to develop certain lands. The general rule of law is stated at 50 C.J.S. Judgments § 657 (citing numerous cases), as: “ ‘A judgment on the merits, rendered in a former suit between the same parties or their privies, on the same cause of action, by a court of competent jurisdiction, operates as a bar not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. In other words, he must present his whole case, extending his claim so as to embrace everything which properly constitutes a part of his cause of action or defense, and cannot bring a new suit to recover something more on the same cause of action.’ “This Court is of the opinion that everything arising out of the Sherwood Land-Theofanopoulos transactions was litigated, or could have been properly-presented, in the cases decided in the Circuit Court of Wayne County, Illinois. “Two allegations in the amended complaint could not have been litigated by the plaintiff in any of the other cases and it is now necessary to consider them. Paragraph 17(b) of the amended complaint alleges that Noel Smith attempted subornation of perjury. The allegation is that Smith offered to pay Castle if Castle would commit perjury in the pending litigation between Smith and Liddell, and that Castle refused to- so commit perjury. Paragraph 17(g) alleges that Smith committed perjury in every hearing that has been held in the above-mentioned actions in Wayne County, Illinois. Considering, but not deciding, that these allegations are true, it is quite obvious that they could not have been tried in any other case because they involve matters that would have happened during the course of the trial. The question remains, whether a civil action for damages is proper because of this alleged perjury and subornation of perjury. The general rule, which is followed by both the Federal Courts and the courts of the State of Illinois, is that in the absence of statute, no action lies to recover damages caused by perjury or subornation of perjury, whether committed in the course of, or in connection with, a civil action or suit, a criminal prosecution, or other proceeding, and whether the perjurer was a party to or a witness in the action or proceeding. 70 C.J.S. Perjury § 92; Robinson v. Missouri Pac. Transp. Co. (D.C.Ark.) 85 F.Supp. 235 (1948); Graham v. Morgan, (D.C.Okla.), 129 F.Supp. 199 (1955) affirmed 228 F.2d 625, 54 A.L.R.2d 1290 (10th Cir. 1956); Dean v. Kirkland, 301 Ill.App. 495 (1939), 23 N.E.2d 180 (1939); Hocker v. Weltie, 239 Ill.App. 392 (1926). After considering all the facts and the applicable law, this Court is of the opinion that judgment should be and hereby is, entered for the defendants.” ****** We agree and we affirm. Affirmed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_direct2	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 position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. BRATCHER v. UNITED STATES. No. 5344. Circuit Court of Appeals, Fourth Circuit. May 9, 1945. Writ of Certiorari Denied June 18,1945. See 65 S.Ct. 1580. Milton Kramer, of Washington, D. C. (Joseph A. Fanelli, of Washington, D. C., on the brief), for appellant. George R. Humrickhouse, Asst. U. S. Atty., of Richmond, Va. (Harry H. Holt, Jr., U. S. Atty., of Norfolk, Va., and Fred E. Strine, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee. Before PARKER, SOPER, and NORTHCOTT, Circuit Judges. NORTHCOTT, Circuit Judge. This is an appeal from a judgment of conviction and sentence in the District Court of the United States for the Eastern District of Virginia, at Alexandria, under which appellant was sentenced to imprisonment for a term of four years and fined in the sum of $1,000 for violation of Section 11 of the Selective Training and Service Act, 50 U.S.C.A.Appendix § 311, in evading service in the armed forces by presenting himself for induction pursuant to an order issued by his draft board in Washington, D. C., while in an abnormal physical condition resulting from the use of benzedrine which he had allegedly theretofore taken for the purpose of rendering his physical condition abnormal. The indictment against the appellant, herein referred to as the defendant, was in three counts. The trial judge directed a verdict of not guilty on count one and the jury found the defendant not guilty on count three, but guilty on count two. We are only concerned on this appeal with count two which charged that on or about November 23, 1943, at Fort Myer, Arlington County, Virginia, the defendant, a registrant within the meaning of the Selective Training and Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 1 et seq., and regulations thereunder, did knowingly, wilfully, unlawfully and feloniously evade service in the land and naval forces of the United States, in that he presented himself to the armed forces induction station and to the medical examiners thereof for induction, pursuant to an order of Local Board No. 1 of Washington, D. C., while in an abnormal physical condition resulting from the use of a drug popularly known as benzedrine, which drug theretofore had been taken by the defendant for the purpose of rendering his physical condition abnormal and thus causing his rejection for service. Prior to trial defendant moved to suppress the evidence obtained as a result of the physical examination which was given him on November 23, 1943, at the induction station at Fort Myer, on the ground that such examination was conducted for the purpose of obtaining evidence to be used against him and hence constituted an illegal search and seizure in violation of the Fourth Amendment to the Constitution, with the further result that the use of the evidence thereby obtained was compulsory self-incfimination in violation of the Fifth Amendment. After a hearing at which evidence was taken on the motion, the court denied it on the ground that defendant had totally failed to carry the burden resting on him to show that the object of the examination was to secure evidence to be used against him in a criminal prosecution. A trial was had in November, 1944, at Alexandria. After, the verdict, the defendant moved for a new trial which motion was denied and after sentence the defendant brought this appeal. The defendant, about thirty years of age, was the organizer, manager, and conductor of a dance orchestra in Washington, D. C., and registered for the draft on October 16, 1940, in Washington, D. C., where he then and continuously thereafter resided and worked. On December 2, 1941, he was classified 1-B (for limited military service) on account of defective eyesight. On February 6, 1943, he was ordered to report or. February 18, 1943, for induction, but that order was rescinded by his draft board. On Márch 16, 1943, he was classified III-A because of his ailing mother’s dependency upon him for her support. On August 16, 1943, he was ordered to report for induction on August 28th, but was rejected and on September 15, 1943, was placed in IV-F (physically unfit for military service). Two months later, on November 12, 1943, he was again ordered to report for induction on November 23rd. Upon reporting on November 23, 1943, defendant was sent to the Fort Myer induction station where his blood pressure was found to be 164/102, and he was sent to the Fort Myer Station Hospital for twenty-four hours for observation. During the observation period it developed from an analysis of his urine that the defendant had been taking a drug called benzedrine. This is a drug that has the effect of increasing blood pressure and is taken as a stimulant by persons who desire to keep awake. The Government contends that the defendant admitted having taken tablets the night preceding his examination on August 28, 1943, and during the night on November 22, 1943, and the early morning of November 23, 1943, he took two or three tablets and after reporting for induction that morning he again took two more tablets at the Fort Myer Station Hospital. Several witnesses testified that the defendant admitted that he had taken the drug for the purpose of increasing his blood pressure and insuring his rejection by the examining board. There was medical evidence tending to show that the effect of the drug was to increase blood pressure. A number of points are raised by the defendant which are urged as reversible error: 1. Whether the Court erred in permitting a juror, one C. J. Ford, to sit as a member of the jury. This juror upon being questioned on his voir dire, stated that he had not formed or expressed an opinion as to the guilt of innocence of the defendant and that he knew of no reason why he could not hear the testimony and return a true verdict according to the law and the evidence. In response to a question by defendant’s counsel as to whether he could judge the case as fairly as if he did not have two sons in the service, the reply was “No, I guess not”. Counsel asked no further questions and made no objection when the court accepted Ford as a juror. 2. Whether the trial court erred in overruling defendant’s motion to suppress certain evidence obtained at his examination m the hospital, in November. 3. Whether the trial court had jurisdiction. 4. Whether the corpus delicti was proven other than through alleged admissions of the defendant. 5. Whether the trial court erred in not granting defendant’s motion to strike the testimony of witness Chambers who testified as to the urinalysis. 6. Whether the trial court erred in admitting in evidence, over defendant’s objection and exception, Government Exhibit 3, an empty bottle alleged to have contained a specimen of urine. 7. Whether the court erred in sustaining the Government’s objection to defendant’s efforts to show that his examination in November, 1943, was not given him for the purpose of inducting him but only for the purpose of obtaining evidence. 8. Whether error was committed in permitting cross-examination of certain character witnesses. 9. Whether it was prejudicial to the defendant to permit the case to go to the jury on the third count. 10. Whether it was error to overrule defendant’s motion for a directed verdict of acquittal on the second count. 11. Whether there was error in the charge of the court to the jury. 12. • Whether it was error to adjourn the jury the night of November 28, during the taking of the evidence. 13. Whether there was error committed by the prosecuting officer in his argument to the jury. 14. Whether there was error in not granting a new trial because the foreman of the jury brought into the jury room, during the jury’s deliberations, a newspaper containing a discussion of the case. We will consider each of these points in the order in which they are enumerated. The examination of the juror, Ford, upon his voir dire, as set out above, seems to have been full and fair. When juror Ford was accepted by the court defense counsel did not accept and did not strike the juror. The trial judge is vested with a wide discretion in determining the competency of jurors and his judgment will not be interfered with except in the case of an abuse of discretion. Lias v. United States, 4 Cir., 51 F.2d 215, affirmed per curiam 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; see also Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann. Cas. 1138; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244; Assaid v. United States, 4 Cir., 10 F.2d 752. We are of the opinion that the action of the court in accepting Ford as a juror was correct and did not prejudice the rights of the defendant. The trial judge took evidence on the motion to suppress the evidence obtained while the defendant was in the hospital. A number of witnesses were heard and the trial judge in an able written opinion overruled the motion on the ground that the defendant had “totally failed to carry the burden resting on him”. The determination of this question by the trial judge was the determination of a question of fact and was sustained by substantial direct evidence offered on behalf of the Government. Had the examination of the defendant shown that he was physically fit for induction into the limited services he would have been inducted at once and there was no evidence offered to show that the authorities intended anything other than to comply with the regulations and induct the defendant if he was found acceptable. We do not think that defendant’s physical examination could possibly be considered an unlawful search and seizure. The evidence was obtained under the Selective Training and Service Act and the regulations issued thereunder. We are therefore of the opinion that there was no violation of the Fifth Amendment in admitting this evidence. We are of the opinion that the action of the court below in refusing the motion to suppress the evidence was correct and that no constitutional rights of the defendant were violated by the admission of the evidence. The evidence shows conclusively that the induction station at Fort Myer is in the State of Virginia and the District Court for the Eastern District of Virginia clearly had jurisdiction of the case because it was there that the offense, charged in the second count of the indictment, was committed. Points four, five, six, seven, eight, nine and ten may all be considered together. An examination of the record shows that there was sufficient evidence, which if believed by the jury, would support the verdict. All the elements of the offense were properly proven. It was shown that defendant presented himself for induction in an abnormal physical condition; that such condition resulted from his taking of the drug benzedrine; that the drug was taken by him purposely to produce that abnormal condition and his consequent rejection. The testimony of witness Chambers was competent and there was no error in the refusal of the trial court to strike the evidence. The admission over defendant’s objection and exception of an empty bottle was not of any consequence but in any event the exhibit was properly admitted and the admission of the reports of the examination of the defendant in 1941 and a written statement containing admission of defendant and a map were proper. The trial court was right in permitting the cross-examination of defendant’s character witnesses. In view of the verdict of the jury on the third count it is not necessary to consider the point raised that it was error to overrule the defendant’s motion for a directed verdict on that count. The evidence of the Government, if believed by the jury, was amply sufficient to prove that the defendant’s blood pressure was abnormal for him. There was no error in the charge of the trial judge to the jury and no objection was made to it. At the time the court permitted the separation of the jury defendant and one of his counsel were present and acquiesced in the separation. It is settled that a jury may be allowed to separate during their deliberations Lucas v. United States, 8 Cir., 275 F. 405 certiorari denied 258 U.S. 620, 42 S.Ct. 272, 66 L.Ed. 795; Brown v. United States, 69 App.D.C. 96, 99 F.2d 131. Objection was made to some remarks by the prosecutor in his argument to the jury. It is well settled that the remarks of a prosecutor do not constitute a basis for reversal unless they result in prejudice to the accused. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314. It is only in the most exceptional cases that a defendant can remain silent and interpose no objection and after verdict has been returned object that the prosecutor made improper remarks to the jury. United States v. Socony-Vacuum Oil Co., supra; Crumpton v. United States, 128 U. S. 361, 11 S.Ct. 355, 34 L.Ed. 958; Dale v. United States, 7 Cir., 66 F.2d 666. The only remark of the prosecutor, in his argument, to which the defendant’s counsel objected, at the time, was the statement that defendant’s counsel had cast reflections. upon the integrity of the jury. This statement of the prosecutor was made in an effort to answer statements made by defendant’s counsel in his argument and under the ruling of the court that the question raised was one for the jury to determine there was no resulting prejudice to the defendant. The authorities relied upon by defendant’s counsel are easily distinguishable and are not controlling here. The mere fact that jurors have read newspaper accounts of the trial in which they are participants is not ground for a new trial. United States v. Reid, 12 How. 361, 53 U.S. 361, 13 L.Ed. 1023; Van Riper v. United States, 2 Cir., 13 F.2d 961, certiorari denied Ackerson v. United States, 273 U.S. 702, 47 S.Ct. 162, 71 L.Ed. 848; Tinkoff v. United States, 7 Cir., 86 F.2d 868, certiorari denied 301 U.S. 689, 57 S.Ct. 795, 81 L.Ed. 1346. Even where the jury saw and discussed a newspaper headline to the effect that gamblers were betting ten to one that there would be an acquittal, the action of the trial court in denying a motion for a new trial was sustained. Beard v. United States, 65 App.D.C. 231, 82 F.2d 837, certiorari denied 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382. There was no error in the refusal of the trial court to grant the motion for a new trial. A motion for a new trial is addressed to the discretion of the trial court, and the refusal to grant such a motion is not reviewable unless there is a manifest abuse of discretion. Holt v. United States, supra; Luke v. United States, 5 Cir., 84 F.2d 711, certiorari denied 299 U.S. 542, 57 S.Ct. 45, 81 L.Ed. 399; Sutton v. United States, 9 Cir., 79 F.2d 863. The defendant had a fair and impartial trial; the question of his guilt or innocence was one for the jury; there was no harmful error in the trial of the case and the question of the severity of the sentence cannot be passed upon by us. The judgment of the court below is accordingly affirmed. Affirmed. Note: New York Central R. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Read v. United States, 8 Cir., 42 F.2d 636; Ippolito v. United States, 6 Cir., 108 F.2d 668; Lau Lee v. United States, 9 Cir., 67 F.2d 156; Hall v. United States, 4 Cir., 256 F. 748; Paquin v. United States, 8 Cir., 251 F. 579; Sparks v. United States, 6 Cir., 241 F. 777. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_respond1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). MASSACHUSETTS PROTECTIVE ASS’N, Inc., v. BAYERSDORFER. No. 7881. Circuit Court of Appeals, Sixth Circuit. June 28, 1939. Bailey Aldrich, of Boston, Mass. (Garfield, Cross, Daoust, Baldwin & Vrooman, A. D. Baldwin, and Leslie R. Ulrich, all of Cleveland, Ohio, and F. H. Nash, of Boston, Mass., on the brief), for appellant. John E. Irvine, of Steubenville, Ohio (Smith, Francis & Irvine, Carl H. Smith, all of Steubenville, Ohio, on the brief), for appellee. Before HICKS, HAMILTON, and ARANT, Circuit Judges. HICKS, Circuit Judge. Appellee, a resident of Steubenville, Ohio, sued appellant upon a policy of accident insurance issued by it upon the life of her husband, Stanley W. Bayersdorfer. Clause G provided in part, “This policy does not cover death * * * sustained as the result of participation in aviation, aeronautics or subaquatics. * * * ” The facts were either stipulated or unchallenged. Bayersdorfer was a merchant at Steubenville. On April 7, 1936, he embarked at Camden, N. J., as a fare-paying passenger, on an airliner operated by Transcontinental and Western Air Lines, Inc. Its destination was Pittsburgh. Flying through a dense fog, the plane crashed and Bayersdorfer was killed. The policy was issued August 15, 1933. The court heard the case without a jury and, rejecting appellant’s defense that the deceased’s death resulted from “participation in aviation” or “aeronautics,” entered a judgment in favor of appellee. The appeal presents the question: Whether the quoted portion of Clause G absolved appellant from liability. There are no Ohio decisions interpreting a like clause. This court has twice had before it appeals involving insurance company liability for death resulting from aeroplane accident. In First Natl. Bank of Chattanooga v. Phoenix Mut. Life Ins. Co., 6 Cir., 62 F.2d 681, 682, it held that one who owned a plane, employed a pilot to operate it, and determined whether weather conditions warranted flight and the time for flight, was “participating in aeronautic operations,” even though he did not actually pilot the plane. In Mayer v. New York Life Ins. Co., 6 Cir., 74 F.2d 118, 99 A.L.R. 155, it decided that the beneficiaries of the insurance of a fare-paying passenger, killed in an aeroplane accident, could not recover double indemnity under a policy providing that the double indemnity provisions did not apply to deaths resulting from engagement “as a passenger or otherwise, in * * * aeronautic operations.” Neither decision is controlling here. Bayersdorfer had no voice in the operation of the plane as in the first case; and there was no claus.e in the instant policy, denying recovery to passengers, as in the Mayer case. Deceased was a merchant. No contention is made that he had any voice in the operation of the plane. He simply bought passage on a commercial transport plane, operated by a company in the business of air transportation. Did he under these circumstances participate in aviation or aeronautics ? The meaning of the word “participation” has not varied appreciably in thirty years. In the Oxford Dictionary, Edition of 1909, it is defined as “1. The action or fact of partaking, having or forming part of. * * * 2. The fact or condition of sharing in common (with others; or with each other) * * * (b) A taking part, association or sharing (with others) in some action or matter.” In the Funk & Wagnalls New Standard Dictionary, 1938 Edition, it is defined as “1. The act or state of sharing in common with others; a receiving or having part of something; a partaking. * * * ” In Webster’s New International Dictionary, 1932 Edition, it is defined as “1. Act or state of participating or sharing in common with others; * * * act or state of partaking or forming a part of.” The New Century Dictionary, 1927 Edition, has it “ * * * a taking part, as in some action or attempt.” The phrasing of the definitions differs slightly, but so far as we can judge, the concept is the same in all four dictionaries. What acts, action, activity or attempt is it that insured must not take part in, share in common, or participate in, with others ? What is the “aviation” and “aeronautics” he is forbidden to participate in? In 1909, the word “aviation” did not appear in the Oxford Dictionary. It defined “aeronautics” as “The science, art or practice of sailing in the air; aerial navigation.” The 1938 Funk & Wagnalls Dictionary defined aviation as “The art of flying; especially the management of aeroplanes.” Aeronautics was . “The branch of aerostatics which treats of floating in or navigating the air as in an airship or aeroplane. 2. The art or practice of sailing or floating in the air, * * The New Century Dictionary, 1927, defined aviation as “The act, art or science of flying by mechanical means, esp. with machines heavier than air; navigation of the air with flying machines or aeroplanes”; and aeronautics as “The science or art of aerial navigation.” Webster, 1932, defined the terms as follows: Aviation, “The art or science of locomotion by means of aeroplanes”; and aeronautics, “The science and art of seif sustained flight in air, as by means of a balloon; aerial navigation; ballooning.” These definitions disclose that both “aviation” and “aeronautics” are highly technical subjects in the realm of art and science, and were so when the policy was written. The 1927 Funk & Wagnalls Dictionary defined both subjects in the same terms, used in the 1938 edition. There is hardly any basis for ambiguity. Bayersdorfer was a merchant, — a passenger. As such he placed himself in the hands of those who were versed and practiced in the science and art of aviation and aeronautics. He did not share in common with them in the management or navigation of the plane. He incurred, perforce, the incidental hazards, but the policy was to protect him against hazards and if this particular one was intended to be excepted, more explicit language could have been used. Even if the language be considered ambiguous, we should arrive at the same conclusion, on the principle of construction, that it should be interpreted most favorably to the insured. Mutual Ins. Co. v. Hurni Co., 263 U.S. 167, 174, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102. Clause G has been considered by other courts. In Sneddon v. Mass. Protec. Ass’n, Inc., 39 N.Mex. 74, 39 P.2d 1023, the insured was killed while riding as an invited passenger in a privately owned plane. The court held that he was participating in aviation or aeronautics within the exception but the circumstances ■ were such that the case bears little analogy to Bayersdorfer’s situation. In Bew v. Travelers’ Ins. Co., 95 N.J.L. 533, 112 A. 859, 14 A.L.R. 983, the policy excluded death resulting from “participating in * * * aeronautics.” The court held that a passenger was thus participating in aeronautics, reasoning that one who was not steering a toboggan but riding thereon was nevertheless participating m the sport; and that one riding in the back seat of a car was participating in automobiling. See also Travelers’ Ins. Co. v. Peake, 82 Fla. 128, 89 So. 418; Meredith v. Business Men’s Acc. Ass’n, 213 Mo.App. 688, 252 S.W. 976; and Head v. N. Y. Life Ins. Co., 10 Cir., 43 F.2d 517. But in Gregory v. Mutual Life Ins. Co. of New York, 8 Cir., 78 F.2d 522, 524, the court held that “ ‘participation in aeronautics’ * * * do not * * * include a passenger on a transport airplane.” To the same effect is Mutual Ben. Health & Acc. Ass’n v. Moyer, 9 Cir., 94 F.2d 906; Marks v. Mut. Life Ins. Co. of New York, 9 Cir., 96 F.2d 267; and Mutual Ben. Health & Acc. Ass’n v. Bowman, 8 Cir., 99 F.2d 856. The Bew and Peake cases were decided in 1921, the Meredith case in 1923, and the Plead case in 1930. But -the cases upholding appellee’s contention have all been decided since 1935. We think that the later cases reflect a changing attitude toward aviation, due no doubt to the marvelous progress made in the art of flying. In the early days each flight was a venture. The pilot and passenger, if he had one, flew tandem, or side by side, in an open cockpit over unknown terrain, to make-shift landing fields. Today transport flying is a business. The air lines have modern landing fields and passenger stations, and their established scheduled routes are protected by radio beams, beacons, weather reports, etc. They compete with each other for patronage and people in increasing numbers are using their services as a matter of course. Their passengers no more participate in the operation of their planes than do passengers upon a railroad train participate in operating the train or those upon an ocean liner participate in navigating the ship. They pay their fares and passively accept the services and accommodations offered. The pilot is employed because of his skill and efficiency. The passenger is not permitted to direct or control him as to how, where or when he shall fly. Any sensible passenger would not presume to do so. If it was ever true, it cannot now be said that a fare-paying passenger on a. commercial air liner “participates in aviation or aeronautics.” Words, after all, are but labels whose content and meaning are continually shifting with the times. Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372, L.R.A.1918D, 254. The judgment is affirmed. Webster, 1936, defined aviation as “The art or practice of operating heavier-than-air aircraft.' Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_app_stid	52	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. GOVERNMENT OF the VIRGIN ISLANDS, Appellant, v. BURMINGHAM, Andrew, Appellee. No. 85-3159. United States Court of Appeals, Third Circuit. Argued Dec. 3, 1985. Decided April 17, 1986. J’Ada M. Finch-Sheen, Atty. Gen., Jacqueline A. Drew, (Argued), Charlotte Ama-lie, St. Thomas, U.S. Virgin Islands, for appellant. John J. Mahon, (Argued), Charlotte Ama-lie, St. Thomas, U.S. Virgin Islands, for appellee. Before HUNTER, GARTH, and BECKER, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge: On this appeal, the Government as appellant argues that Andrew Burmingham, who had been charged with various criminal offenses under the Virgin Islands Code, had not been deprived of his right to a speedy trial, even though the Information charging him was filed in the Territorial Court on December 1, 1980 and some eighteen months later no trial had yet been had. The Territorial Court denied Burmingham’s motion to dismiss the Information under the Speedy Trial Act, 18 U.S.C. § 3161 et seq. and Federal Rule of Criminal Procedure 48(b). After a nonjury trial held in May, 1982, Burmingham was convicted on all four counts of the Information. On appeal to the district court this decision was reversed. We now vacate the order of the district court. I. Appellee Andrew Burmingham was involved in a fight with one Selvin Joseph, in which Burmingham attacked Joseph with a machete. The only witness to this fight, aside from the two participants, was Ruth Joseph, formerly the girlfriend of Burming-ham and now Selvin Joseph’s wife. Both men were wounded and required hospital treatment. Burmingham was arrested on November 26, 1980. On December 1, 1980, the Government filed an Information in the Territorial Court. Burmingham was charged with three counts of third degree assault and one count of unlawful possession of a deadly weapon during the commission of a crime of violence, all in violation of Virgin Islands statutes. He was arraigned on December 9, and the case was subsequently set for trial on March 30, 1981. On March 11, 1981, Burmingham moved for dismissal of the Information under the Speedy Trial Act, 18 U.S.C. § 3161, et seq. and Fed.R.Crim.P. 48(b). The Territorial Court took Burmingham’s motion for dismissal under advisement, along with other similar motions, in order to seek an in banc answer of that court to the question of whether the Speedy Trial Act was applicable to criminal proceedings in the Territorial Court. However, the Territorial Court never considered the question in banc. Some thirteen months later, on April 16, 1982, the Territorial Court denied Burming-ham’s motion to dismiss the charges. Ironically, it was Burmingham’s assertion of this purported statutory speedy trial claim that stretched the delay so that it exceeded eight months. LaFave & Israel, Criminal Procedure § 18.2, at 405 (quoting Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)). In denying Burmingham’s motion, the Territorial Court followed Government of the Virgin Islands v. Albert John Quetel, 18 V.I. 145 (Terr.Ct.1982), which held the Speedy Trial Act inapplicable to Territorial Court proceedings. The Territorial Court went on to hold that dismissal pursuant to Rule 48(b) was not warranted. Applying the constitutional speedy trial analysis of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the court concluded that: Although there has been excessive delay in bringing the defendant to trial, and the reason for the delay is chargeable mostly to the court, these factors are substantially outweighed by the fact that the delay was both necessary and justifiable, by the defendant’s failure to assert his right to a speedy trial, and particularly by the fact that the defendant has not been prejudiced by the delay. Following the denial of his speedy trial motion, on May 14, 1982, Burmingham was tried in a bench trial and was convicted on all four counts. On appeal to the district court, Burming-ham for the first time raised a Sixth Amendment claim, while also pressing his Rule 48(b) and Speedy Trial Act claims. The district court applied the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to Burmingham’s constitutional claim. Unlike the Territorial Court, the district court concluded that Burmingham had been denied his right to a speedy trial. By its order of February 27, 1985, the district court vacated the judgment and conviction entered by the Territorial Court, and dismissed the Information filed against Burmingham. II. The Government contends that Burming-ham, by. not raising his Sixth Amendment claim at the trial level, has forfeited his right to do so now. This argument is supported by the in banc holding of this court that “it will not entertain arguments on appeal based on objections not timely raised below.” United States v. Gibbs, 739 F.2d 838 (3d Cir.1984). In Gibbs, this court held that a constitutional objection taken after both parties had rested at trial, and which raised issues different from the evidentiary (statutory) objection taken during trial, was not sufficient to preserve the later raised constitutional issue. Gibbs had objected to certain co-conspirator evidence at trial, referring to Federal Rule of Evidence 801(d)(2)(E) as the basis for his objection. No constitutional (Sixth Amendment) objection had ever been raised before the parties had rested. After testimony had closed and the parties had rested, and the court had refused to reconsider its evidentary ruling, Gibbs for the first time made a general Sixth Amendment motion to strike the evidence. Gibbs had contended that the Government had the burden of proving the unavailability of a witness in order to adduce hearsay testimony from a co-conspirator. This challenge too was denied by the district court. On appeal to this court, we noted that issues different from the Rule 801 objection were raised by the Confrontation Clause objection. We also observed that the Government had not been given the opportunity to meet the objection — primarily, we observed that the Government could not at that stage satisfy the issue of witness availability. We did not reach the merits of Gibbs’ argument, holding instead that the issue had not been preserved for appeal. To the extent that both Gibbs and Burm-ingham first raised statutory objections and only thereafter raised constitutional objections, it would appear, at least on the surface, that no distinction could be drawn between the two cases. In such a situation, Gibbs obviously would control and we would be compelled to hold that Burming-ham, by failing to raise his constitutional objection before the Territorial Court, came within the Gibbs doctrine and had not preserved a constitutional issue for review in this court. However, there are two significant differences between Gibbs and Burmingham. First, whereas in Gibbs the constitutional objection could have been taken at the same time as the evidentiary objection (thereby affording the Government time to respond to the claimed deficiency in proof), here Burmingham, at the time he made his motion under the Speedy Trial Act and Rule 48(b), could not legitimately have raised a constitutional claim that his speedy trial right had been violated. Burmingham’s motion before the Territorial Court was made less than five months after his arrest and indictment. A delay of that length is not sufficiently prejudicial to trigger a constitutional inquiry. See La Fave & Israel, Criminal Procedure § 18.2, at 405. Our research has disclosed no case which we find persuasive that has held a delay of less than five months to constitute a violation of the constitutional right to a speedy trial. Second, while concededly Burmingham did not, and we believe could not, have raised a constitutional challenge before the Territorial Court, his contention that the indictment should be dismissed under Rule 48(b) led the Territorial Court to engage in the same analysis to resolve that issue as it would have been obliged to engage in had the constitutional claim been presented to it. The Territorial Court in Burming-ham did in fact employ the same analysis in a statutory context that it would have employed in the constitutional context. Thus, the Government was not, and could not have been, prejudiced by the failure of Burmingham to specifically delineate the constitutional claim under which he subsequently proceeded. This was not the case in Gibbs, where the statutory analysis differed substantially from the Sixth Amendment, thus resulting in prejudice to the Government. We are satisfied, therefore, that Gibbs does not control the preservation issue raised by the Government in this case. Accordingly, we proceed to the merits of the Government’s argument that Burming-ham’s Sixth Amendment right to a speedy trial was not violated. m. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court adopted a balancing test to determine whether a delay in bringing a defendant to trial infringed upon his right to a speedy trial. That test, recently reaffirmed in United States v. Loud Hawk, — U.S.-, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), requires that we consider four factors: the length of the delay; the reason for the delay; defendant’s assertion of the right; and prejudice to the defendant. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. Prejudice is the key factor here, and its absence is decisive in this case. The Supreme Court has identified three interests of defendants that may be prejudiced by denial of the right to a speedy trial: preventing oppressive pretrial incarceration; minimizing anxiety and concern of the accused; and limiting the possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193; see also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). In United States v. Loud Hawk, — U.S. -, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), the Court laid particular emphasis on the first of the three interests, stating that “the Speedy Trial Clause’s core concern is impairment of liberty,” id. 106 S.Ct. at 654, and pointing out that in that case, “despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeal,” id. at 656-57. Similarly here, Burmingham was not incarcerated prior to his trial. Nor is there evidence in the instant case of any unusual burden of anxiety. The district court, in its opinion holding that Burmingham had been denied his right to a speedy trial, referred to the anxiety of the accused as the only element of prejudice. Yet it recognized that Burmingham’s anxiety was no greater than that which “inevitably attend[s] a criminal prosecution.” A-7. Finally, there was no suggestion here that Burmingham’s defense had been in any way impaired by the delay. Given that there were only two witnesses, and that those witnesses had good reason to remember the events in question, there is little likelihood of prejudice to Burmingham’s defense. In the absence of prejudice, we might nevertheless be inclined to look more favorably on Burmingham’s claim if there were evidence that the government had “deliberately attempt[ed] to delay the trial in order to hamper the defense,” Barker, 407 U.S. at 531, 92 S.Ct. at 2192, or even if the delay were in any way attributable to the prosecution. Here, responsibility for the delay rests with the Territorial Court. The initial three month delay was due to a crowded docket in the Territorial Court, and the subsequent delay was due to that court’s attempt to reach a decision on the applicability of the Speedy Trial Act to the Territorial Court. In Loud Hawk, the Supreme Court considered a delay similar in nature to that in the instant case. There, an interlocutory appeal by the government to the Court of Appeals for the Ninth Circuit, though expedited, consumed nearly two years. The Supreme Court noted that under Barker a delay from overcrowded courts should be weighed against the government, but less heavily than deliberate delay. The Court went on to observe that there had been “no showing of bad faith or dilatory purpose on the Government’s part” Loud Hawk, 106 S.Ct. at 656, and gave little weight to the resulting delay. The delay in the instant case was justified by the Territorial Court’s desire to seek clarification of the law. Like the delay in Loud Hawk, it does not weigh strongly, if at all, against the government. Absent impairment of the defense, pretrial incarceration, or any evidence of unusual psychological distress, and absent unjustifiable procrastination by the government, we do not believe that a delay of eighteen months between indictment and trial requires us to grant Burmingham’s speedy trial claim predicated on Barker v. Wingo. Accordingly, the judgment of the district court will be vacated and the case remanded with instructions to the district court to reinstate the judgment and sentence of the Territorial Court. . The district court did not address the issue of the applicability of the Speedy Trial Act, nor did Burmingham raise it on appeal before us. We therefore do not address that issue here. . We observe that the Supreme Court has recently decided that the Confrontation Clause does not require a showing of unavailability as a condition to admission of the out-of-court statements of a non-testifying co-conspirator. United States v. Inadi, — U.S.-, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). . Rule 48(b) provides as follows: Rule 48. Dismissal ****** (b) By Court. If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information of complaint. . In relevant part. Sixth Amendment provides as follows: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed____ U.S. Const, amend. VI. . The government does not rest its argument on a failure by Burmingham to assert his right to a speedy trial. . This case is thus distinguishable from United States v. Dreyer, 533 F.2d 112 (3d Cir.1976), in which we granted the speedy trial claim of Audrey Ellen Goldsmith. The time between indictment and trial in that case was two and a half years. Goldsmith provided evidence that she had experienced severe mental disturbance during that period. . The Territorial Court could have granted relief to Burmingham under Rule 48(b) even though such relief was not constitutionally required. See, e.g., United States v. Rich, 589 F.2d 1025, 1034 (10th Cir.1978); United States v. Cartano, 420 F.2d 362, 363 (1st Cir.1969), cert. denied, 397 U.S. 1054, 90 S.Ct. 1398, 25 L.Ed.2d 671 (1970). However, it declined to do so. Instead, it applied the constitutional test of Barker v. Wingo. Under such a circumstance, our holding that the district court's constitutional analysis under the same test was flawed requires reinstatement of the Territorial Court’s judgment. Question: What is the state of the first listed state or local government agency that is an appellant? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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. Ronald Lee LONG, a minor, by Lewis Daniel Long, his father and next friend, and James Brooks, Jr., a minor by Lillian Brooks, his mother and next friend, individually and on behalf of all other minor children similarly situated and Robert D. Neal, Intervenor, v. Honorable Jerome ROBINSON, Associate Judge, Municipal Court of Baltimore City and State of Maryland. No. 15033. United States Court of Appeals, Fourth Circuit. Aug. 11, 1970. Joseph A. Matera and Michael A. Millemann, Baltimore, Md., for original plaintiffs. Peter Smith and Edwin S. Villmoare, Baltimore, Md., for intervening plaintiff. Francis B. Burch, Atty. Gen., Edward F. Borgerding, Robert DiCicco, and Alfred J. O’Ferrall, Asst. Attys. Gen., for the State of Maryland. MEMORANDUM AND ORDER WINTER, Circuit Judge. Application has been made to me as a single United States Circuit Judge for a stay of an order of the district court entered August 6, 1970 pending appeal. Rule 62(g), F.R.Civ.P. The order sought to be stayed, filed simultaneously with an opinion expressing fully the district court’s views, declared unconstitutional certain provisions of the Ann.Code of Md., Art. 26, § 51 et seq., and the Charter and Public Local Laws of Baltimore City, Art. 4, § 240, which exempt Baltimore City from the uniform state definition of juvenile age as 18 years. By virtue of these statutes a child in Baltimore City ceases to be juvenile upon obtaining the age of 16. The age for determining who is a juvenile is important, because juveniles are treated differently from adults when they are charged with a violation of the criminal laws and for other purposes. The order required that all persons between 16 and 18 years of age when arrested (except in the case of alleged capital offenders) who are currently confined in the city jail and other places of incarceration in Baltimore City awaiting trial be released to the juvenile authorities “as expeditiously as possible.” The order did not seek to implement in other respects the declaration of invalidity, but the opinion recited that the court was of the view that such affirmative relief was unnecessary because public officials charged with enforcement of the statutes would comply with the declaration without the necessity of an injunction or restraining order. Although not mentioned in the order, the opinion indicated that the principles decided therein should be applied retroactively to May 15, 1969, the date on which suit was instituted. The stay is sought by defendants on the assertion that the district judge reached incorrect legal conclusions. Defendants cite no authority for this contention not considered by the district court. Factually, defendants contend that they are entitled to a stay because of the substantial administrative and economic burdens which will be placed upon them in complying with the order. These burdens would prove unnecessary and would not be reimbursible if the order is reversed on appeal. Testimony was proffered (the proffer of counsel being accepted as to what the witnesses would have testified without the necessity of hearing the witnesses) that it is estimated that the order will ultimately double the yearly caseload of juvenile causes in Baltimore City. This increase, the proffer concluded, will require an expansion of special temporary detention facilities for juveniles, training schools, courts and court personnel, social workers and other personnel to apprehend, process and deal with the persons accused of offenses other than capital crimes between the ages of 16 and 18. It is said also that equipment to transport juveniles other than the customary “paddy wagon” will be required, and increased burdens will be placed upon the police department of Baltimore City which will require an increase of personnel to avoid a diminution in other police work. Additionally, it is said that the doubling of the caseload will adversely affect the treatment program for juveniles under the age of 16 until the additional facilities and personnel can be provided. While it is obvious that the annual number of adult causes in Baltimore City will decrease by the same amount that the number of juvenile causes will increase, the effect will not be a “wash” transaction. This is so because juvenile causes require special facilities, special personnel and special procedures. Additionally, many, if not most, charges lodged against those between the ages of 16 and 18 are presently determined in the Municipal Court of Baltimore City. The Municipal Court has no juvenile jurisdiction so that under existing law juvenile causes must be dealt with by the Supreme Bench of Baltimore City. Judges and other court personnel may not be transferred or assigned from the Municipal Court to the Supreme Bench. Because insufficient funds to meet the estimated increased costs of additional juvenile causes are not available, it may be necessary to convene a special session of the General Assembly of Maryland to make appropriations to meet the increased costs attributable to the order. I. The legal principles by which an application for a stay of an order of a district court pending appeal is to be judged may be simply stated. The leading authority is Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958) cited with approval in Permian Basin Area Rate Cases, 390 U.S. 747, 773, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). The principles set forth in the Virginia Petroleum Jobbers Association case appear to be the law of this circuit. Airport Commission of Forsyth County, N. C. v. Civil Aeronautics Board, 296 F.2d 95 (4 Cir. 1961). They have sub sequently been expressly adopted in the fifth and second circuits. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5 Cir. 1968); Eastern Air Lines, Inc. v. Civil Aeronautics Board, 261 F.2d 830 (2 Cir. 1958). See also Pitcher v. Laird, 415 F.2d 743 (5 Cir. 1969); Covington v. Schwartz, 230 F.Supp. 249 (N.D.Cal.1964), mod. and aff’d, 341 F.2d 537 (9 Cir. 1965). Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay. In the instant case the district judge twice refused oral requests for a stay. Ordinarily, when a party seeking a stay makes application to an appellate judge following the denial of a similar motion by a trial judge, the burden of persuasion on the moving party is substantially greater than it was before the trial judge. See, for example, the opinion of Mr. Justice Jackson in United States ex rel. Kanuf v. McGrath, October Term 1949, quoted in Breswick & Co. v. United States, 75 S.Ct. 912, 100 L.Ed. 1510 (1955); Magnum Import Co. v. Coty, 262 U.S. 159, 43 S.Ct. 531, 67 L.Ed. 922 (1923); Railway Express Agency, Inc. v. United States, 82 S.Ct. 466, 7 L.Ed.2d 432 (1962). See also Organized Village of Kake v. Egan, 80 S.Ct. 33, 4 L.Ed.2d 34 (1959). The premise of this rule, however, is that the motion for a stay has received full consideration by the trial judge. Leaving aside the suggestion advanced by defendants that the district judge did not afford them a full opportunity to develop the facts with regard to a stay beyond those which were adduced at the trial, it appears that some of the statistics and some of the evidence as to the effects of the order were not developed until after the trial. Therefore I will treat the application as if it were made to me in the first instance and not give weight to the district judge’s denial of the motion. II. From consideration of the factors set forth above, I conclude that the stay should be denied. My reasoning with regard to each follows: A. Probability of success on appeal. I conclude that on the main questions decided the probability of success on appeal is not substantial. In arriving at this conclusion I emphasize that I do not, expressly or impliedly, decide any of the substantive issues which will be reached on appeal or express any view on the ultimate merits of the appeal. But in studying the opinion of the district court I note that the court has applied a conservative test of what constitutes denial of equal protection of the laws. Unlike most equal protection cases, the district judge received extensive testimony in his search for a possible rational basis for a difference in definition between what constitutes a juvenile in Baltimore City and what constitutes a juvenile in the rest of the state. The district judge found as a fact that there was no rational basis for the distinction, and the finding does not appear to be clearly erroneous. All of the legal authorities which the parties claim are pertinent to the litigation were considered by the district judge and appear to have been correctly applied. The question of in what retrospective period the principles announced are to be applied may be more debatable. It would appear that those included within the class should be entitled to the same relief as the named plaintiffs, but what should be done with regard to those whose trials have not been stayed awaiting the outcome of this litigation is more uncertain. However, the number of persons falling into this category cannot be substantial although the parties are presently unable to estimate their number. B. Irreparable injury to moving party. I do not minimize the cost, the inconvenience or the burdens which will be placed upon the defendants should they begin compliance with the order. However, “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.” Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d at 925. Even if the economic and administrative impact on the defendants is substantial and, indeed, irreparable should the order be reversed on appeal, I cannot conclude that this factor is entitled to much weight when I consider the historical context in which the litigation arises. As more fully set forth in the opinion of the district court, the lower age for juveniles in Baltimore City was the subject of careful study and full legislative consideration in 1966 by the Legislative Council and in particular by the so-called Rasin Committee. Based upon this study a legislative determination to abolish the distinction between Baltimore City and the rest of the state was made in 1966, to become effective July 1, 1969. Obviously the effective date of the change was deferred to make possible the construction of facilities, the employment of personnel and the revision of procedures to deal with the change. So far as I have been able to determine nothing was done. In 1969 the effective date of the change was postponed for another year, and again, with the possible exception of inter-departmental planning, no effective steps to cope with the change were taken. This was so notwithstanding the view that the distinction between the juvenile age in Baltimore City and the rest of the state was unconstitutional had been advanced in 1966 and that this litigation attacking the constitutionality of the distinction was instituted on May 15, 1969. Again in 1970, with the instant case pending, the effective date of the change was postponed until 1971. With the exception of some inter-departmental consideration as to the effect of the change, some preliminary planning for a new detention facility and the authorization for a bond issue to be voted on at the General Election in November, 1970 to finance the construction of some facilities, no steps have been taken to implement the decision made in 1966. There has apparently been no thought given to the revision of police procedures and no substantial steps taken for the opening of temporary places of detention for the small percentage of juveniles not released initially into the custody of their parents prior to the time that the district court’s opinion was filed. Regrettably I must conclude that the principal irreparable injury which defendants claim that they will suffer if the order of the district court is not stayed is injury of their own making. The defendant State of Maryland has postponed the moment of truth as long as possible, but the moment of truth is now at hand. It would seem elementary that a party may not claim equity in his own defaults. C. Harm, to plaintiffs. Little need be said with regard to this factor. Defendants are willing to concede that the named plaintiffs may obtain the immediate benefit of the district court’s order, but they press for the stay as to other members of the class on whose behalf the named plaintiffs sue. I do not believe that the named plaintiffs can or should be so severed. Aside from the likely deleterious consequences which will be visited upon persons between the ages of 16 and 18 by reason of their temporary or permanent incarceration with persons over the age of 18 should the order be stayed, the other civil disabilities enumerated by the district judge are entitled to great weight. D. Public interest. In accord with the views of those who have carefully studied the question — both the members of the Rasin Commission and those who gave uncontradicted testimony before the district judge — the public interest lies in immediate implementation of the order. The problem has been studied in Maryland since 1966, and so far as the record before me shows, the views of those competent to express them with regard to how to meet the problem are virtually unanimous. The feeling is that what has not been done should have been done both for the benefit of persons within the 16 to 18 year age bracket and for society in general. The Attorney General has raised the possibility — but not pressed it — that if the General Assembly is convened in special session to finance implementation of the order, that body may seek to solve the problem by lowering the maximum juvenile age to 16 throughout the state. I recognize that the General Assembly has that authority, and if it exercises it, the legal issues will be obviated, and all plaintiffs will be denied relief. I hope it unlikely that the General Assembly would lightly cast aside the time, thought and study which have gone into this problem by seizing upon this retrogressive expedient in the light of its thrice recognized need for changing the old distinction. But a judicial officer should not grant a stay to forestall adverse legislative action; rather the stay should be granted or withheld on the facts of record before the judge. III. Finding that defendants have not established their entitlement to a stay under a balancing of the factors which govern the grant, I deny it. Because it is obviously in the public interest to do so, I will, with the consent of parties and with their offers of complete cooperation, expedite the appeal, to the end that it will probably be heard at the September Term. The filing of the record and the schedule for the filing of briefs will be worked out by the clerk with counsel. Printing of briefs will be excused. It is so ordered. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casedisposition	E	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. TERRELL v. MORRIS, SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY No. 88-7535. Decided October 10, 1989 Per Curiam. Petitioner Terrell is incarcerated in a state prison in Ohio. After applying for state-law postconviction relief, he petitioned for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254 (1982 ed.). Terrell’s habeas petition includes an ineffective-assistance-of-counsel claim. The Ohio courts held in postconviction proceedings that Terrell had defaulted this claim by failing to raise it when represented by new counsel on direct appeal. In so doing, the Ohio courts relied upon State v. Cole, 2 Ohio St. 3d 112, 113-114, 443 N. E. 2d 169, 171 (1982). The Cole rule postdated Terrell’s appeal, which was decided on December 30, 1981. Before Cole, Ohio had permitted ineffective-assistance claims in collateral challenges even if a petitioner had not raised those claims when represented by new counsel on direct appeal. See State v. Hester, 45 Ohio St. 2d 71, 71-72, 74-75, 341 N. E. 2d 304, 305, 307 (1976) (permitting a postconviction ineffective assistance claim to go forward despite a failure to raise the issue on direct appeal); see also Cole, supra, at 113-114, 443 N. E. 2d, at 171 (expressly modifying Hester). Terrell thus could not have known that he would default his ineffective-assistance claim by his new counsel’s failure to raise it on direct appeal. Terrell argued to the Federal District Court that the State could not invoke its procedural default rule retroactively. The District Judge agreed and proceeded to the merits of Terrell’s ineffective-assistance claim. The Sixth Circuit disposed of Terrell’s pro se appeal in a per curiam, unpublished opinion. Terrell v. Marshall, 872 F. 2d 1029 (1989) (judgment order). The Court of Appeals held that “the District Court properly determined that Terrell’s” ineffective-assistance claim, as well as several other claims, “were not re viewable” because of Terrell’s “failure to raise these claims in state court proceedings.” App. to Pet. for Cert. A-2. The District Court had, however, made no such determination: the District Court reached the merits of the ineffective-assistance claim because the only applicable procedural default rule postdated Terrell’s conviction. The Court of Appeals neither noted nor addressed the retroactivity issue. The Sixth Circuit, by its unpublished opinion, affirmed a decision that the District Court never made, and so never reviewed that court’s actual decision. Review of the procedural bar and retroactivity issues should be undertaken based on a correct formulation of the ruling in the District Court. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. The author of the Court of Appeals’ unpublished opinion may have relied on the Magistrate’s conclusion that petitioner’s ineffective-assistanee-of-counsel claim was barred by procedural default. See App. to Pet. for Cert. C-4. The Magistrate, however, had. neither noted nor addressed the retroactivity issue that the District Court resolved in petitioner’s favor. Because the question whether the Ohio Supreme Court’s decision in State v. Cole, 2 Ohio St. 3d 112, 443 N. E. 2d 169 (1982), should be given retroactive effect may govern the disposition of a significant number of ineffective-assistance-of-counsel claims, the question clearly merits the attention of the Court of Appeals. Moreover, since the answer to the question requires a familiarity with Ohio law, it should not be addressed in this Court before we have the benefit of the Court of Appeals’ views. Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
songer_numresp	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. 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. M. M. ZENOFF, Commercial Credit Corporation and Southwestern Publishing Company, Inc., Appellant, v. Charles J. KETCHAM, doing business as Lake Motors and Studebaker Sales and Service, and Studebaker Packard Sales Agency, Appellee. No. 16469. United States Court of Appeals Ninth Circuit. May 31, 1961. Magleby & Posin, and Albert M. Dreyer, Las Vegas, Nev., for appellants. Hawkins, Cannon & Hawkins, Las Vegas, Nev., and Gordon L. Hawkins, Las Vegas, Nev., for appellee. Before POPE, HAMLIN and MERRILL, Circuit Judges. HAMLIN, Circuit Judge. The order of the district court from which this appeal is taken commences by saying, “This matter is a masterpiece •of confusion.” We agree. On March 1, 1957, the appellants filed a petition in the United States District Court for the District of Nevada seeking to have Charles J. Ketcham adjudicated an involuntary bankrupt. The matter was referred to a referee who held a hearing on April 13, 1957, and dismissed the petition on June 18, 1957, on the ground that “Charles J. Ketcham, is now and has been for more than six months prior to March 1, 1957, a resident of and domiciled within the State of California.” A petition for the review of this order was timely filed on July 6, 1957. Pending the hearing on the petition to declare Ketcham an involuntary bankrupt, the referee had issued an injunction restraining the sale under a deed •of trust of certain real property alleged to belong to Ketcham, but when the petition was dismissed on June 18, 1957, no ■order was made continuing the injunction in effect. The real property secured by the deed of trust was sold at foreclosure sale on July 2,1957, and on the same ■day that the petition for review of the referee’s order was filed, July 6, 1957, a petition was filed seeking to set aside the sale under the deed of trust. While the record does not show that responsibility can be placed on either the appellants, the referee, the clerk of the bankruptcy referee, the clerk of the district court, the district judge, the appellees, or the attorneys for any of the parties, the record does show that to date there has been no hearing on the merits of the petition for review or the petition to vacate the sale under the deed of trust. On September 9, 1957, apparently without notice to either party, the district judge ordered that “the prayer of each of the respective petitions be and they are hereby denied.” At this time the referee’s certificate had not been filed. On October 8, 1957, in response to a motion to vacate the order of September 9 on the ground that it had been improvidently made,- the district judge made an order in which he stated that the certificate of the referee was not on file and that “petitioners should not be prejudiced because of the failure of the Referee to file such certificate.” He then decided that the order of September 9 should be amended and accomplished that end as follows: “Ordered, that the order of this Court made and entered on the 9th day of September, 1957, be and is hereby amended and modified as follows: That the paragraph of said order reading ‘Ordered, that the prayer of each of the respective petitions be and they are hereby denied’ be stricken, and that in lieu thereof the following paragraph be inserted: ‘Ordered, that each of said petitions be and they are hereby, dismissed without prejudice, it appearing that the Court has no jurisdiction to hear the matters presented in the petitions at this time.’ ” Apparently nothing further was done in the matter until January 23, 1959, when further hearing on the petition to review was set for May 4, 1959, “to the end that ‘all interested’ parties might appear, or at least file their points and authorities, in support or opposition to the petition for review.” This order contained the following: “Further Ordered, that a copy of this order be forthwith served by the Clerk upon the interested parties herein mentioned to the end that they may, within fifteen days from the date hereof, file their authorities in support of whatever position they desire to take (1) in connection with the petition for review, and (2) the petition to vacate sale.” On the 26th of February, 1959, the district judge dismissed the proceedings; In this order he stated that the further hearing of the petition for review had been set for May 4,1959, and that within the fifteen-day period after the January 23rd order, although a memorandum had been filed by counsel for the alleged bankrupt no memoranda had been filed by petitioners. He concluded that argument would be “futile” and ordered that “all proceedings now pending in this matter be * * * dismissed with prejudice.” An appeal to this court was timely filed, and we have jurisdiction under the provisions of 11 U.S.C.A. §§ 47 and 48. We shall consider the order of October 8, 1957, purporting to dismiss the petition without prejudice, as one which denied the petitions without prejudice, inasmuch as the court in that order stated that “the facts as now presented to the Court indicate that the petitioner should not be prejudiced because of the failure of the Referee to file such certificate.” The language used indicates that it was not intended to be a final disposition. Petitioners have contended in this court that even though Ketcham may not have been a resident of Nevada for more than six months before the filing of the involuntary petition in bankruptcy, that nevertheless under Section 32 of the Bankruptcy Act as amended in 1952, 11 U.S.C.A. § 55, the district judge had power to transfer the case to another court of bankruptcy or to retain the ease in the interest of justice. We do not pass upon this contention. The petitioners, however, are entitled to a hearing before the district judge on the merits of their petitions. The judgment of the district court is reversed with directions to grant such hearing. . Time to file the petition was extended by the referee to July 6, 1957. . The referee filed Ms certificate on February 10, 1958. Question: What is the total number of respondents in the case? Answer with a number. Answer:
sc_respondent	075	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. Glenn TIBBLE, et al., Petitioners v. EDISON INTERNATIONAL et al. No. 13-550. Supreme Court of the United States Argued Feb. 24, 2015. Decided May 18, 2015. David C. Frederick, Washington, D.C., for petitioners. Nicole A. Saharskyfor the United States as amicus curiae, by special leave of the Court, supporting the petitioners. Jonathan D. Hacker, Washington, D.C., for respondents. David C. Frederick, Brendan J. Crimmins, Jeremy S. Newman, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., Jerome J. Schlichter, Counsel of Record, Michael A. Wolff, Sean E. Soyars, Schlichter, Bogard & Denton, LLP, St. Louis, Missouri, for Petitioners. Anna-Rose Mathieson, Ward A. Penfold, Gabriel Markoff, Diana Rogosa, Brian Y. Chang, O'Melveny & Myers LLP, San Francisco, CA, Sergey Trakhtenberg, Rosemead, CA, Jonathan D. Hacker, (Counsel of Record), Walter Dellinger, Brian D. Boyle, Meaghan VerGow, O'Melveny & Myers LLP, Washington, D.C., for Respondents. Opinion Justice BREYERdelivered the opinion of the Court. Under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829 et seq.,as amended, a breach of fiduciary duty complaint is timely if filed no more than six years after "the date of the last action which constituted a part of the breach or violation" or "in the case of an omission the latest date on which the fiduciary could have cured the breach or violation." 29 U.S.C. § 1113. The question before us concerns application of this provision to the timeliness of a fiduciary duty complaint. It requires us to consider whether a fiduciary's allegedly imprudent retention of an investment is an "action" or "omission" that triggers the running of the 6-year limitations period. In 2007, several individual beneficiaries of the Edison 401(k) Savings Plan (Plan) filed a lawsuit on behalf of the Plan and all similarly situated beneficiaries (collectively, petitioners) against Edison International and others (collectively, respondents). Petitioners sought to recover damages for alleged losses suffered by the Plan, in addition to injunctive and other equitable relief based on alleged breaches of respondents' fiduciary duties. The Plan is a defined-contribution plan, meaning that participants' retirement benefits are limited to the value of their own individual investment accounts, which is determined by the market performance of employee and employer contributions, less expenses. Expenses, such as management or administrative fees, can sometimes significantly reduce the value of an account in a defined-contribution plan. As relevant here, petitioners argued that respondents violated their fiduciary duties with respect to three mutual funds added to the Plan in 1999 and three mutual funds added to the Plan in 2002. Petitioners argued that respondents acted imprudently by offering six higher priced retail-class mutual funds as Plan investments when materially identical lower priced institutional-class mutual funds were available (the lower price reflects lower administrative costs). Specifically, petitioners claimed that a large institutional investor with billions of dollars, like the Plan, can obtain materially identical lower priced institutional-class mutual funds that are not available to a retail investor. Petitioners asked, how could respondents have acted prudently in offering the six higher priced retail-class mutual funds when respondents could have offered them effectively the same six mutual funds at the lower price offered to institutional investors like the Plan? As to the three funds added to the Plan in 2002, the District Court agreed. It wrote that respondents had "not offered any credible explanation" for offering retail-class, i.e., higher priced mutual funds that "cost the Plan participants wholly unnecessary [administrative] fees," and it concluded that, with respect to those mutual funds, respondents had failed to exercise "the care, skill, prudence and diligence under the circumstances" that ERISA demands of fiduciaries. No. CV 07-5359 (CD Cal., July 8, 2010), App. to Pet. for Cert. 65, 130, 142, 109. As to the three funds added to the Plan in 1999, however, the District Court held that petitioners' claims were untimely because, unlike the other contested mutual funds, these mutual funds were included in the Plan more than six years before the complaint was filed in 2007. 639 F.Supp.2d 1074, 1119-1120 (C.D.Cal.2009). As a result, the 6-year statutory period had run. The District Court allowed petitioners to argue that, despite the 1999 selection of the three mutual funds, their complaint was nevertheless timely because these funds underwent significant changes within the 6-year statutory period that should have prompted respondents to undertake a full due-diligence review and convert the higher priced retail-class mutual funds to lower priced institutional-class mutual funds. App. to Pet. for Cert. 142-150. The District Court concluded, however, that petitioners had not met their burden of showing that a prudent fiduciary would have undertaken a full due-diligence review of these funds as a result of the alleged changed circumstances. According to the District Court, the circumstances had not changed enough to place respondents under an obligation to review the mutual funds and to convert them to lower priced institutional-class mutual funds. Ibid. The Ninth Circuit affirmed the District Court as to the six mutual funds. 729 F.3d 1110 (2013). With respect to the three mutual funds added in 1999, the Ninth Circuit held that petitioners' claims were untimely because petitioners had not established a change in circumstances that might trigger an obligation to review and to change investments within the 6-year statutory period. Petitioners filed a petition for certiorari asking us to review this latter holding. We agreed to do so. Section 1113reads, in relevant part, that "[n]o action may be commenced with respect to a fiduciary's breach of any responsibility, duty, or obligation" after the earlier of "six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission the latest date on which the fiduciary could have cured the breach or violation." Both clauses of that provision require only a "breach or violation" to start the 6-year period. Petitioners contend that respondents breached the duty of prudence by offering higher priced retail-class mutual funds when the same investments were available as lower priced institutional-class mutual funds. The Ninth Circuit, without considering the role of the fiduciary's duty of prudence under trust law, rejected petitioners' claims as untimely under § 1113on the basis that respondents had selected the three mutual funds more than six years before petitioners brought this action. The Ninth Circuit correctly asked whether the "last action which constituted a part of the breach or violation" of respondents' duty of prudence occurred withinthe relevant 6-year period. It focused, however, upon the act of "designating an investment for inclusion" to start the 6-year period. 729 F.3d, at 1119. The Ninth Circuit stated that "[c]haracterizing the mere continued offering of a plan option, without more, as a subsequent breach would render" the statute meaningless and could even expose present fiduciaries to liability for decisions made decades ago. Id.,at 1120. But the Ninth Circuit jumped from this observation to the conclusion that only a significant change in circumstances could engender a new breach of a fiduciary duty, stating that the District Court was "entirely correct" to have entertained the "possibility" that "significant changes" occurring "within the limitations period" might require " 'a full due diligence review of the funds,' " equivalent to the diligence review that respondents conduct when adding new funds to the Plan. Ibid. We believe the Ninth Circuit erred by applying a statutory bar to a claim of a "breach or violation" of a fiduciary duty without considering the nature of the fiduciary duty. The Ninth Circuit did not recognize that under trust law a fiduciary is required to conduct a regular review of its investment with the nature and timing of the review contingent on the circumstances. Of course, after the Ninth Circuit considers trust-law principles, it is possible that it will conclude that respondents did indeed conduct the sort of review that a prudent fiduciary would have conducted absent a significant change in circumstances. An ERISA fiduciary must discharge his responsibility "with the care, skill, prudence, and diligence" that a prudent person "acting in a like capacity and familiar with such matters" would use. § 1104(a)(1); see also Fifth Third Bancorp v. Dudenhoeffer,573 U.S. ----, 134 S.Ct. 2459, 189 L.Ed.2d 457 (2014). We have often noted that an ERISA fiduciary's duty is "derived from the common law of trusts." Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc.,472 U.S. 559, 570, 105 S.Ct. 2833, 86 L.Ed.2d 447 (1985). In determining the contours of an ERISA fiduciary's duty, courts often must look to the law of trusts. We are aware of no reason why the Ninth Circuit should not do so here. Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee's duty to exercise prudence in selecting investments at the outset. The Bogert treatise states that "[t]he trustee cannot assume that if investments are legal and proper for retention at the beginning of the trust, or when purchased, they will remain so indefinitely." A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees § 684, pp. 145-146 (3d ed. 2009)(Bogert 3d). Rather, the trustee must "systematic[ally] conside[r] all the investments of the trust at regular intervals" to ensure that they are appropriate. Bogert 3d § 684, at 147-148; see also In re Stark's Estate, 15 N.Y.S. 729, 731 (Surr.Ct.1891)(stating that a trustee must "exercis[e] a reasonable degree of diligence in looking after the security after the investment had been made"); Johns v. Herbert,2 App.D.C. 485, 499 (1894)(holding trustee liable for failure to discharge his "duty to watch the investment with reasonable care and diligence"). The Restatement (Third) of Trusts states the following: "[A] trustee's duties apply not only in making investments but also in monitoring and reviewing investments, which is to be done in a manner that is reasonable and appropriate to the particular investments, courses of action, and strategies involved." § 90, Comment b,p. 295 (2007). The Uniform Prudent Investor Act confirms that "[m]anaging embraces monitoring" and that a trustee has "continuing responsibility for oversight of the suitability of the investments already made." § 2, Comment, 7B U.L.A. 21 (1995) (internal quotation marks omitted). Scott on Trusts implies as much by stating that, "[w]hen the trust estate includes assets that are inappropriate as trust investments, the trustee is ordinarily under a duty to dispose of them within a reasonable time." 4 A. Scott, W. Fratcher, & M. Ascher, Scott and Ascher on Trusts § 19.3.1, p. 1439 (5th ed. 2007). Bogert says the same. Bogert 3d § 685, at 156-157 (explaining that if an investment is determined to be imprudent, the trustee "must dispose of it within a reasonable time"); see, e.g., State Street Trust Co. v. De Kalb,259 Mass. 578, 583, 157 N.E. 334, 336 (1927)(trustee was required to take action to "protect the rights of the beneficiaries" when the value of trust assets declined). In short, under trust law, a fiduciary normally has a continuing duty of some kind to monitor investments and remove imprudent ones. A plaintiff may allege that a fiduciary breached the duty of prudence by failing to properly monitor investments and remove imprudent ones. In such a case, so long as the alleged breach of the continuing duty occurred within six years of suit, the claim is timely. The Ninth Circuit erred by applying a 6-year statutory bar based solely on the initial selection of the three funds without considering the contours of the alleged breach of fiduciary duty. The parties now agree that the duty of prudence involves a continuing duty to monitor investments and remove imprudent ones under trust law. Brief for Petitioners 24 ("Trust law imposes a duty to examine the prudence of existing investments periodically and to remove imprudent investments"); Brief for Respondents 3 ("All agree that a fiduciary has an ongoing duty to monitor trust investments to ensure that they remain prudent"); Brief for United States as Amicus Curiae7 ("The duty of prudence under ERISA, as under trust law, requires plan fiduciaries with investment responsibility to examine periodically the prudence of existing investments and to remove imprudent investments within a reasonable period of time"). The parties disagree, however, with respect to the scope of that responsibility. Did it require a review of the contested mutual funds here, and if so, just what kind of review did it require? A fiduciary must discharge his responsibilities "with the care, skill, prudence, and diligence" that a prudent person "acting in a like capacity and familiar with such matters" would use. § 1104(a)(1). We express no view on the scope of respondents' fiduciary duty in this case. We remand for the Ninth Circuit to consider petitioners' claims that respondents breached their duties within the relevant 6-year period under § 1113, recognizing the importance of analogous trust law. A final point: Respondents argue that petitioners did not raise the claim below that respondents committed new breaches of the duty of prudence by failing to monitor their investments and remove imprudent ones absent a significant change in circumstances. We leave any questions of forfeiture for the Ninth Circuit on remand. The Ninth Circuit's judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 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_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. Frank ILLINGWORTH, Appellant, v. INDUSTRIAL MOLASSES CORPORATION et al., Appellees. No. 16150. United States Court of Appeals Eighth Circuit. Dec. 24, 1959. Rehearing Denied Jan. 18, 1960. John C. Stevens, of Randall & Stevens, Cedar Rapids, Iowa, presented oral argument on behalf of appellant. Ernest F. Pence, of Sargent, Spangler, Hines & Pence, Cedar Rapids, Iowa, made argument for appellee. Before GARDNER, VOGEL, and MATTHES, Circuit Judges. GARDNER, Circuit Judge. Appellant, Frank Illingworth, was the owner and driver of a truck-tractor which, while it was being driven westward on Highway No. 6, about one mile east of South Amana, Iowa, became stalled while partly on the paved portion of the highway. A truck-trailer driven by appellee Laverne Carrington in a westerly direction collided with appellant’s stalled tractor. The tractor driven by appellee Carrington belonged to ap-pellee Industrial Molasses Corporation, which also owned the cargo of molasses being transported in the trailer attached to the tractor. Based upon claims of personal injuries or damage to property resulting from this accident two actions were brought, one by appellees Carring-ton and Industrial Molasses Corporation for personal injuries to Carrington and damages to property of Industrial Molasses Corporation, and the other by one Kenneth C. Koch doing business as Chilli-cothe Cartage Company, for damages to property. In the action brought by Carrington and Industrial Molasses Corporation it was alleged in the complaint that defendant in that action, appellant here, was negligent in the following particulars: (a) in stopping, parking, or leaving standing, said truck upon the paved traveled part of U. S. Highway No. 6; (b) in failing to leave said truck stopped, parked or standing off of the paved or main traveled part of said Highway No. 6 and upon the shoulder of said highway; (c) in failing to leave a clear and unobstructed width of at least twenty feet of said Highway No. 6 opposite said parked or standing vehicle for the free passage of other vehicles, including plaintiff’s vehicle; (d) in failing to display a lighted fusee, lighted flares, red reflector electric lanterns, or red reflectors, when defendant’s tractor was stopped on the traveled portion of Highway No. 6; (e) in failing to display a red light visible to the rear from a distance of 500 feet, when the defendant’s tractor was parked or stopped upon Highway No. 6. Illingworth, in his answer to the complaint, denied all charges of negligence charged in the complaint and by way of counterclaim charged the plaintiffs with negligence in the following particulars: (a) the failure to operate said tractor and trailer at such a rate of speed as to permit the same to be brought to a stop within the assured clear distance ahead; (b) the failure to have said tractor and trailer under control; (c) the failure to keep a proper lookout; (d) operating said tractor and trailer at a speed in excess of fifty miles per hour; (e) not driving said tractor and trailer at a careful and prudent speed under the conditions then existing; (f) failing at the time and place of said accident to use a distribution of light, or composite beam directed high enough and of sufficient intensity to> reveal persons and vehicles at a safe distance in advance of the vehicle which the plaintiff Laverne Carrington was then and there driving. The plaintiffs by reply put in issue all the allegations of negligence contained in Illingworth’s counterclaim. In the action brought by Kenneth C. Koch, the complaint charged Illingworth with the same acts of negligence as alleged in the complaint of Carrington and Industrial Molasses Corporation, and in turn Illingworth by his answer denied all acts of negligence. As the two actions grew out of the same accident, the court consolidated them for the purpose of trial and they were tried to the court and a jury on instructions to which certain exceptions hereinafter to be noted were saved by Illingworth, appellant herein. The jury returned a verdict in favor of Kenneth C. Koch and against Illingworth, and also returned a verdict against appellant on his counterclaim in the action brought by Carrington and Industrial Molasses Corporation. In due course the court entered judgments pursuant to these verdicts. Appellant moved for a new trial in each of the cases, which the court denied. Illingworth did not prosecute his appeal from the judgment in favor of Kenneth C. Koch, but settled same. From the judgment in favor of ap-pellees on his counterclaim appellant seeks reversal on the ground that the court erred in the following particulars: (1) the trial court erred in refusing to give an instruction of Section 321.415, Code of Iowa (1954), as amended, I.C.A.; (2) the trial court erred in submitting a specification of negligence based solely on negative testimony; (3) the trial court erred in refusing to strike that portion of the testimony of the witness Hummel which was based on hearsay; (4) the trial court erred in submitting Instruction No. 12 to the jury; (5) the trial court erred in failing to give an instruction on disabled vehicles; (6) the trial court erred in submitting Instruction No. 13 to the jury. It will be observed that the alleged errors complained of are errors in giving or refusing to give instructions or alleged errors in ruling on the admissibility of evidence. There is no challenge to the sufficiency of the evidence to sustain the verdict on which the court entered judgment dismissing appellant’s counterclaim on its merits. The court instructed the jury in great detail, the instructions being numbered from 1 to 23, both inclusive. Appellant challenges only three of these instructions; to wit, Instruction No. 11, Instruction No. 12, and Instruction No. 13. He also complains that the court erred in refusing two instructions requested by him. We have given careful consideration to all the exceptions now urged to the court’s instructions and in doing so have considered the instructions as a whole with meticulous care and think they properly presented the issues to the jury and contained no prejudicial error. In view of our conclusion, hereinafter expressed, as to the effect to be given to Instruction No. 16, which was not objected to, we deem it unnecessary to review the alleged errors in the giving or refusing of other instructions. Instruction No. 16 given by the court reads as follows: “If your verdict is in favor of Kenneth C. Koch on his claim against Frank Illingworth, you need not give consideration to the claim of Frank Illingworth against the Industrial Molasses Corporation and Laverne Carrington. Further, if your verdict is in favor of the Industrial Molasses Corporation and Laverne Car-rington on their claims against Frank Illingworth, you need not give consideration to the claim of Frank Illingworth against them. Under the applicable law if Kenneth C. Koch or the Industrial Molasses Corporation and Laverne Carrington recover against Frank Illingworth, he cannot recover against the Industrial Molasses Corporation and Laverne Carrington and you should thereupon return a verdict in their favor on his claim against them. If you find that the Industrial Molasses Corporation and Laverne Carrington or Kenneth C. Koch are not entitled to recover against Frank Illing-worth, you will then consider the claim of Frank Illingworth against the Industrial Molasses Corporation and Laverne Carrington.” This instruction was not objected to by any of the parties to the action, and it is not alleged nor charged as error in appellant’s brief. It cannot therefore be reviewed on this appeal. Rule 51, Federal Rules of Civil Procedure, Title 28 United States Code; Palmer v. Miller, 8 Cir., 145 F.2d 926; Hall v. Aetna Life Ins. Co., 8 Cir., 85 F.2d 447. The allegations as to- negligence were common to both actions, as was also the evidence in support of the allegations of negligence. As the sufficiency of the evidence to sustain the verdict is not challenged, this instruction became the law of the case. Baker v. Chicago, B. & Q. R. Co., 8 Cir., 220 F.2d 721; Pierce Consulting Engineering Co. v. City of Burlington, 2 Cir., 221 F.2d 607; Kelly v. Emary, 242 Iowa 683, 45 N.W.2d 866; 53 Am.Jur. Trial, Sec. 844, p. 620; Barron and Holtzoff, Sec. 1106, p. 804. In this Instruction No. 16 the court specifically told the jury that if their verdict was in favor of Kenneth C. Koch on his claim against Illingworth they need not give consideration to the claim of Illingworth against Industrial Molasses Corporation and Carrington. The jury, as has been observed, returned a verdict in favor of Kenneth C. Koch and against Illingworth. In so doing the jury of necessity found appellant guilty of negligence in the particulars alleged in the complaint of the appellees in their action against appellant. As this finding of the jury conclusively precluded appellant’s right to recover on his counterclaim, we pretermit any further consideration as to other instructions given or refused by the court. It is finally urged that the court erred in refusing to strike the testimony of an expert witness called by appellees to the effect that the right rear wheel of the Illingworth tractor was five feet, ten inches south of the north edge of the highway, for the reason that it was based on hearsay. The evidence was not objected to when given and there was no suggestion that sufficient foundation had not been laid for the opinion of the witness nor that the matter was not the proper subject of expert testimony, although that was apparent on the face of the question. This same question was urged on motion for new trial, in response to which the court said: “As to Paragraph 2 of the Motions. The question asked Patrolman Ray Hummel was on its face an improper question. Thornbury v. Maley (1951) [242 Iowa 70] 45 N.W.2d 576; McKeever v. Batcheler (1934), 219 Iowa 93, 257 N.W. 567. If the proper objection had been made to it, i. e., that the question called for expert testimony on a subject which was not a proper subject for expert testimony, the objection would have been sustained and the evidence sought to be elicited by the question would have been barred from the record. The defendant chose not to object to the question and the evidence which was responsive to the question came in without objection. During the cross-examination it developed that possibly the evidence so received was excludable upon another ground. Although it is not clear that the evidence was excludable upon such other ground, yet, if it were, it would seem that the defendant’s action was belated in character.” . No proper objection having been made to the testimony of this witness when offered, we think the court did not abuse its discretion in refusing to grant appellant’s motion to strike. Quite aside from the testimony of this expert witness there was other testimony as to the physical facts and circumstances, leaving no room for doubt that the appellant was stopped, at least temporarily, in the north half of the road in front of appellee. Appellant himself testified on direct examination that: “Just when I rolled to a stop, I rolled it over so the right front wheel and the back right was off of the pavement. Both the right wheels were off the pavement. My tractor was facing northwest.” And on cross-examination he testified that: “I didn’t think it would be hazardous to stop on the traveled part of the highway for a minute or two. I figured I would get her to the shoulder first, but right at the immediate place where I went to pull over, there was a big ditch.” We have considered all other contentions urged by appellant but think they are without merit, and we are convinced that the court committed no prejudicial error in the trial of this case and that appellant had a fair trial. The judgment appealed from is therefore 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_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. The PENNSYLVANIA RAILROAD COMPANY, Third-Party Plaintiff, Appellee, v. ERIE AVENUE WAREHOUSE CO., Third-Party Defendant, Appellant. No. 13618. United States Court of Appeals Third Circuit. Argued Oct. 20, 1961. Decided May 2, 1962. Joseph J. Murphy, Philadelphia, Pa. '(George D. Sheehan, Murphy & Sheehan, Philadelphia, Pa., on the brief), for appellant. Raymond W. Midgett, Jr., Philadelphia, Pa. (Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for appellee. Before KALODNER, HASTIE and GANEY, Circuit Judges. HASTIE, Circuit Judge. This litigation began as a wrongful death action under the Federal Employers’ Liability Act by the administratrix of the estate of Edward Day against the Pennsylvania Railroad. While working for the defendant railroad as a brakeman, Day had been crushed to death between a moving train and a wall on the premises of Erie Avenue Warehouse Co., where the railroad serviced a siding. A third-party claim, filed by the railroad, a citizen of Pennsylvania, against Erie, also a citizen of Pennsylvania, under Rule 14, Federal Rules of Civil Procedure, 28 U.S.C.A., broadened the suit to include the additional claim that, should the railroad be found legally responsible for Day’s death, the amount of any recovery should be recouped, in whole or in part, from Erie under a contract of indemnity. The railroad paid what all parties now recognize as a reasonable sum in settlement of the Day claim and that action was then dismissed. The subsequent trial of the third-party claim resulted in the railroad’s recovery from Erie of the full amount of the Day settlement. The original claim was within federal jurisdiction because it arose under a federal statute, the Federal Employers’ Liability Act. But the third-party claim neither arose under a federal statute nor was asserted between citizens of different states. Independently considered, it was not within federal jurisdiction. However the court below ruled that the third-party claim was so “ancillary” to the original proceeding that no jurisdictional basis was required to support it, beyond the federal question jurisdiction that existed with reference to the principal claim. The correctness of that ruling is the first question on this appeal. Analytically, an “ancillary” claim of the type we now are considering arises solely because of a principal claim and asserts some right pertaining to the judgment sought on the principal claim. More particularly, both principal and “ancillary” claims arise out of the same injury and the “ancillary” claim seeks either to make the judgment effective or to reallocate the liability. In effect, the supplemental proceeding serves to accomplish full justice with reference to any award made on the principal claim. In the present case, the third-party claim serves to settle a question of liability over as between a principal defendant and a third party without subjecting either to prejudice that might result if the matter should be left to subsequent litigation in a separate action. The Supreme Court has long held that the constitutional bounds of federal jurisdiction are not exceeded by broadening an action, that is properly in a federal court, to include various related non-federal claims that are no more intimately connected with the principal claim than is the obviously dependent and supplementary third-party claim here. Moore v. New York Cotton Exchange, 1926, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; Dewey v. West Fairmount Gas Coal Co,, 1887, 123 U.S. 329, 8 S.Ct. 148, 31 L.Ed. 179; Stewart v. Dunham, 1885, 115 U.S. 61, 5 S.Ct. 1163, 29 L.Ed. 329. It follows that the entertaining of the present ancillary claim was a permissible exercise of federal jurisdiction. However, there is the additional question whether the joinder of non-federal claims over against third parties under Rule 14 violates the requirement of Rule 82, Federal Rules of Civil Procedure, that no Rule shall be construed to extend or limit the statutory jurisdiction of the federal courts. We ruled against such a contention in Sheppard v. Atlantic States Gas Co., 3 Cir. 1948, 167 F.2d 841. Such square holdings as there are in other circuits decide that the addition of claims like the present one does not enlarge federal jurisdiction. Dery v. Wyer, 2d Cir. 1959, 265 F.2d 804; United States v. Acord, 10th Cir. 1954, 209 F.2d 709; Waylander-Peterson Co. v. Great Northern Ry., 8th Cir. 1953, 201 F.2d 408, 37 A.L.R.2d 1399. This conclu sion may be justified by demonstrating that analogous or no more closely related non-federal claims were litigated as controversies incidental to federal suits without independent jurisdictional bases before the adoption of the present Rules. It has long been familiar federal practice to entertain an “ancillary” claim without independent jurisdictional basis, if that claim seeks either to make a principal judgment effective or to make some lawfully required reallocation of the burden imposed by the principal recovery. Such a supplemental proceeding may serve to effectuate a principal judgment by restraining a third person from interfering with its operation. Supreme Tribe of Ben-Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673. It may achieve full justice by bringing into a suit a third party who should be required to pay the judgment on a claim because of a transfer of property to him in fraud of creditors. Dewey v. West Fairmount Gas Coal Co., supra. Again, it was familiar practice before the adoption of the present Rules to permit a person whose interest might be affected by the outcome of a diversity case to intervene, regardless of the interven- or’s citizenship. Phelps v. Oaks, 1886, 117 U.S. 236, 6 S.Ct. 714, 29 L.Ed. 888 (landlord intervening in suit against tenant); Stewart v. Dunham, supra (additional creditors intervening to share benefits of a creditors’ bill). Such intervenors are no more seriously affected by outcome of the principal litigation than is a prospective indemnitor of the defendant. In principle, therefore, an indemnitor’s voluntary intervention would be no enlargement of the jurisdiction exercised in the above cited eases. To permit the principal defendant now under Rule 14 to compel his indemnitor to become a party is merely to adopt a new procedure that gives the litigation no broader scope than it could formerly have been given through intervention. We are satisfied no violation of Rule 82 is involved in this case. The question remains whether the settlement of the principal claim and its consequent formal dismissal with prejudice terminated the power of the court to decide the “ancillary” third-party claim. The Supreme Court has from time to time considered the effect of the termination of principal claims upon judicial power to adjudicate pending ancillary claims. When the dismissal of the principal claim has been because the court lacked power from the outset to entertain it, dismissal of the ancillary claim has also been required. Kelleam v. Maryland Casualty Co., 1941, 312 U.S. 377, 61 S.Ct. 595, 85 L.Ed. 899; A. Leschen & Sons Rope Co. v. Broderick & Bascom Rope Co., 1906, 201 U.S. 166, 26 S.Ct. 425, 50 L.Ed. 710; cf. St. Louis I. M. & So. Ry. v. McKnight, 1917, 244 U.S. 368, 37 S.Ct. 611, 61 L.Ed. 1200. But when the principal claim has been defeated on its merits, power to adjudicate pending ancillary matters has been held to survive. Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Moore v. New York Cotton Exchange, 1926, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750; cf. Hardenbergh v. Ray, 1894, 151 U.S. 112, 14 S.Ct. 305, 38 L.Ed. 93; Mollan v. Torrance, 1824, 9 Wheat. 537, 22 U.S. 537, 6 L.Ed. 154. It is logical and eminently fair that the present case, where settlement of the principal claim is not substantially different from recovery upon it in creating a need to adjudicate forthwith the ancillary issue of recovery over, be treated like a disposition on the merits. Dery v. Wyer, supra. This is not to decide that a trial judge would lack discretionary power to dismiss an ancillary claim for policy considerations growing out of the disposition made of the principal claim. But no such adverse policy consideration is urged in this case. Moreover, in refusing to dismiss the ancillary claim the court below pointed out that interrogatories had been filed and answered and other pre-trial steps had been taken in connection with the third-party claim before its dismissal was moved. In all the circumstances, it was reasonable and proper to retain jurisdiction of the third-party claim. We next state the facts essential to the disposition of this appeal on its merits. The accident in controversy occurred during the execution of a switching operation by the railroad over an industrial siding located on property leased and occupied by Erie. The decedent, Day, was working as a railroad brakeman when his head became wedged and was crushed between the side of a moving boxcar and a concrete retaining wall, a permanent structure close to the sidetrack. The accident occurred in an area where a funnel-like narrowing of the space between the sidetrack and the adjacent retaining wall rather abruptly reduced the lateral clearance of a moving boxcar from 31 inches to a mere 7 inches in approximately 15 feet. This means that the lateral clearance between the track itself and the wall was reduced to less than 3 feet at this point. The trial court found, with ample justification in the evidence, that Day’s death resulted from an inadequate and unsafe clearance along side the track. The industrial siding was an old one, and the close clearance in question had existed in 1955, when the railroad contracted to provide Erie with service, and remained unchanged until the fatal accident occurred in 1957. The trial court ruled and it is not disputed now, that under the Federal Employers’ Liability Act the railroad breached its duty to provide its employee Day with a safe place to perform his duties as a brakeman. Accordingly, the railroad properly paid reasonable damages for Day’s death in settlement of the principal claim. The matter in dispute is Erie’s liability over. This depends upon the legal interpretation and effect of certain indemnity provisions of the agreement between Erie and the railroad under which the siding was used. The trial court, sitting without a jury, awarded the railroad full indemnity, and Erie has appealed. The agreement in question was drafted by the railroad and signed by both parties on July 28, 1955. The text of paragraphs 7, 8 and 9 of the agreement is set out in the margin. It will be observed that paragraph 7 explicitly requires Erie to “maintain on its property a clear and safe space above and on each side of the side track sufficient to insure the safety of employees and equipment of the Railroad Company * * * [and to] indemnify and save harmless the Railroad Company from loss, damage and expense for failure so to do.” A similar but more general provision in paragraph 9 requires that the Industry shall “indemnify and hold harmless the Railroad Company for loss, damage and injury of any nature resulting from operation by the Railroad Company over the tracks of the Industry when such loss, damage or injury is due to any unsafe condition of the premises of the Industry.” We need not decide whether these two provisions are partially overlapping. It is sufficient for present purposes that they seem to provide full indemnity to the railroad for harm it may suffer as a result of unsafe conditions, and particularly close clearances, that Erie shall have permitted to exist on its property. It must be considered, however, whether the circumstances of this accident make these full indemnity provisions inoperative and prevent the imposition of any greater responsibility upon Erie than the requirement of paragraph 9 that “if any claim or liability, other than from fire caused by locomotives as aforesaid, shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.” This provision for equal sharing of the burden of joint or concurring negligence cannot reasonably be construed to mean that full indemnity shall be denied whenever the railroad has been sufficiently at fault to be legally liable for the injury of a third person since occasion for indemnification in connection with an injury to a third person normally arises only when some fault is chargeable to the indemnitee. A major purpose of the full indemnity provisions of paragraphs 7 and 9 must have been to shift ultimate responsibility to Erie in some situations where the law makes the railroad responsible to a third person for a wrongful injury. Baltimore & Ohio R.R. v. Alpha Portland Cement Co., 3d Cir. 1955, 218 F.2d 207; Booth-Kelly Lumber Co. v. Southern Pac. Co., 9th Cir. 1950, 183 F.2d 902, 20 A.L.R.2d 695. The agreement to share liability equally, as stated in paragraph 9, becomes operative only if, in relation to a third person the parties are joint tortfeasors and the circumstances of the given case make the undertaking to pay full indemnity inapplicable. Full indemnity may be barred by the fault of the party claiming it. Seeking to establish that this is such a case Erie has invoked the doctrine of “acquiescence”, a widely recognized defense in this area. Perhaps the most frequently quoted general statement of this doctrine appears in Section 95 of the Restatement of the Law of Restitution: “Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.” This doctrine has been applied most frequently where the right to indemnity has been created by the common law of restitution apart from any contract to indemnify. More than sixty years ago, in sustaining a claim to indemnity, the Supreme Court of Pennsylvania recognized this defense to the extent of pointing out that on the facts of the case at hand the indemnitee had not “in any way co-operated with the defendant [indemnitor] in his neglect to perform the duty which, as between * * * [these parties] he assumed to discharge.” Brookville Borough v. Arthurs, 1893, 152 Pa. 334, 340, 25 A. 551, 556. Recently, in Baltimore & Ohio R. R. v. Alpha Portland Cement Co., supra, this court, faced with a problem of indemnity claimed under a railroad siding agreement, quoted and used Section 95 of the Restatement of Restitution as an essentially correct statement of Pennsylvania law in the light of which a Pennsylvania contract should be construed. Still more recently, in Kennedy v. Pennsylvania R. R., 1960, 282 F.2d 705, another suit for indemnity, we found it appropriate to remand the controversy to the district court for a new trial to determine whether there was a contractual obligation to indemnify and whether, on the facts, the claim of the railroad against the landowner for full indemnity was barred by acquiescence as that concept is set out in Section 95 of the Restatement of Restitution. This was a square holding that the doctrine of acquiescence limits the recovery of contractual indemnity in Pennsylvania. Although the Supreme Court of Pennsylvania has not considered this question, our view of Pennsylvania law is supported by the fact that the Superior Court of that state has quoted section 95 with approval. See Georges v. Reading Co., 1948, 162 Pa.Super. 475, 478, 58 A.2d 191, 192. Moreover, the Court of Common Pleas of Allegheny County has applied section 95 as a correct statement of controlling law in Deutsch v. P. C. & Y. Ry., 1956, 7 Pa.Dist. & Co.R.2d 505. It remains to consider what in general constitutes indemnity-defeating acquiescence by the indemnitee in the indemnitor’s wrong, and whether the present record establishes such acquiescence. Basically, we think the concept covers comprehensively a variety of situations in which courts think that a party should be denied indemnity because his own conduct has been so blameworthy and has so contributed to the harm in question that full restitution is inequitable or cannot properly be viewed as within the intended coverage of an agreement to indemnify. One hallmark of such acquiescence is long continued awareness of a dangerous situation by the indemnitee without either taking any corrective measure or calling upon the indemnitor to do so. E. g., Bedal v. Hallack & Howard Lumber Co., 9th Cir. 1955, 226 F.2d 526; Owensboro City Ry. Co. v. Louisville H. & St. L. Ry., 1915, 165 Ky. 683, 178 S.W. 1043; Deutsch v. P. C. & Y. Ry., supra. In the present case the railroad had used the siding despite the close clearance here involved before the present siding agreement was executed. It continued to do so under this agreement for two years before the present accident occurred. It had in its possession a chart showing the relation of the track to adjacent structures. The record is clear that the railroad made periodic inspections of the sidetrack. It is equally clear that the railroad’s operating employees had complained to their superior of close clearances of this siding. Indeed, answering an interrogatory in this case the railroad cited a yardmaster’s report that “verbal complaints have been received from time to time from train and engine service employees during the past couple years, * * * their comments being to the general effect that it is a mean and dangerous place to drill cars”. The court below minimized the railroad’s awareness of the danger, stating that the particular spot where this accident occurred had never been mentioned as specially dangerous. But since the entire siding covered no vast area and clearance was reduced so greatly and so sharply at the point of the accident, normal use of the siding, periodic routine inspections and appropriate investigations of the complaints of employees would necessarily have focused the attention of a prudent operator upon the hazard which caused this accident. We think the conclusion is required by the present record that the railroad had been adequately alerted to the dangerous condition which caused this accident long before the mishap occurred. Yet, it is not disputed that the railroad neither took any corrective action itself nor called upon Erie to do so. The conduct of the railroad is made all the more blameworthy by the fact that, beyond awareness that any switching operation in this area was hazardous, it had received a conductor’s report warning that the hazards on this siding were such that cars should be moved in daylight. Despite this warning, it multiplied the risk of injury on the occasion of this accident by conducting switching at night and by assigning to this hazardous task employees, including the deceased, who had never operated on this siding before. In these circumstances, we think the evidence compels the conclusion that the conduct of the railroad with reference to a special risk to which it had been alerted was so blameworthy that acquiescence must be deemed to bar full indemnity. We are all the more confident of this conclusion because, apart from the formulated doctrine of acquiescence, the Pennsylvania cases repeatedly express the reluctance of the courts of that state to read indemnity contracts as intended to protect the indemnitee from loss attributable to his own blameworthy conduct. E. g., Pittsburgh Steel Co. v. Patterson-Emerson-Comstock, Inc., 1961, 404 Pa. 53, 171 A.2d 185; Perry v. Payne, 1907, 217 Pa. 252, 66 A. 553, 11 L.R.A., N.S., 1173. We think the fact that the railroad drafted the present contract would increase the reluctance in the present case. Although the fault of the railroad was serious enough and sufficiently distinct from Erie’s fault to preclude the railroad from recovering full indemnity from Erie, the combination of distinct blameworthy acts and omissions of the two parties brought the case within the provision of paragraph 9 of the siding agreement that the parties shall bear equally liability arising from their joint or concurring negligence. Erie did not discharge its assumed obligation to maintain safe clearances. The railroad, aware of the danger, operated in a way that magnified it. Only brief mention need be made of a minor point. Erie has objected to the award of interest on the railroad’s claim. The objection is not well taken. The limited contribution required in this opinion is a normal contractual recovery upon which interest may be awarded from the time that Erie was advised that the railroad had settled a liability which it had agreed to share. The judgment will be vacated and the cause remanded for the entry of a new judgment consistent with this opinion. . If a prospective indemnitor cannot enter the litigation until a separate suit is brought against Mm, the judgment theretofore rendered in the original suit may-narrow the defenses available to him. Cf. M. Shapiro & Son v. Warwick, 1959, 189 Pa.Super. 445, 150 A.2d 386. On the other hand, if for any reason the first suit does not foreclose relitigation of any issue it decides, in subsequent litigation between indemnitor and indemnitee a reexamination of the nature or validity of the original claim may prejudice the indemnitee. See Orth v. Consumers’ Gas Co., 1924, 280 Pa. 118, 122, 124 A. 296, 297. . “Clearances. “7. The Industry shall at all times hereafter establish and maintain on its property a clear and safe space above and on each side of the side track sufficient to insure the safety of employees and equipment of the Railroad Company, and the Industry shall indemnify and save harmless the Railroad Company from loss, damage and expense for failure so to do. “The Industry shall observe and comply with all rules and regulations of the Railroad Company governing the handling of inflammable liquids, including loading and unloading of tank ears, the location of racks and storage tanks, and protection of oil sidings from danger due to stray electric currents.” “Fire. “8. It is understood that the movement of railway locomotives involves some risk of fire, and the Industry assumes all responsibility for and agrees to indemnify the Railroad Company against loss or damage to property of the Industry or to property upon its premises, regardless of Railroad Company negligence, arising from fire caused by locomotives operated by the Railroad Company on the side track, or in its vicinity, for the purpose of serving the Industry, except to the premises of the Railroad Company and to rolling stock belonging to the Railroad Company or to others, and to shipments in the course of transportation.” “Liability Other Than Fire. “9. The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Industry, its employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the side track. If any claim or liability, other than from fire caused by locomotives as aforesaid, shall arise from the joint or concurring negligence of both parties hereto it shall be borne by them equally. The Industry also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury of any nature resulting from operation by the Railroad Company over the tracks of the Industry when such loss, damage or injury is due to any unsafe condition of the premises of the Industry.” . The court below took the position, incorrectly we think, that this was hearsay and not competent evidence. Actually it was the fact that complaint had been made, not the correctness of the complaint, which should have been considered. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:

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