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songer_genstand	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the 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". TEXAS RURAL LEGAL AID, INC., et al. v. LEGAL SERVICES CORPORATION, Appellant. No. 90-7109. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 22, 1991. Decided Aug. 2, 1991. Charles J. Cooper, with whom Michael A. Carvin was on the brief, Washington, D.C., for appellant. Paul Nielsen, with whom Richard J. Oparil, Alan W. Houseman, and Linda E. Perle were on the brief, Washington, D.C., for appellees. Before MIKVA, Chief Judge, and D.H. GINSBURG and SENTELLE, Circuit Judges. Opinion for the Court filed by Chief Judge MIKVA. MIKVA, Chief Judge: Three legal services organizations funded by the national Legal Services Corporation (“LSC”) brought suit in district court to enjoin the enforcement of a regulation promulgated by LSC that prohibits recipient programs from engaging in redistricting litigation or related activities. See 45 C.F.R. Part 1632 (1990). The district court ruled in favor of the local organizations and granted the injunction, holding that LSC lacked statutory authority to promulgate the regulation because caseload selection and priority decisions are committed by statute to the discretion of local program recipients. See Texas Rural Legal Aid, Inc. v. Legal Services Corp., 740 F.Supp. 880 (D.D.C.1990). We reverse the district court and uphold LSC's interpretation of its statutory authority to issue regulations of this kind. We reject LSC’s argument, however, that the district court should be directed to dismiss appellees’ claim that LSC acted arbitrarily and capriciously in promulgating the redistricting regulation or, alternatively, that this court should decide the claim on its merits. The district court, because of its resolution of the statutory question, did not reach this claim, and we believe it should have the opportunity to do so on remand. Finally, we also decline to reach appellees’ First Amendment challenge (also not reached by the district court) to one aspect of the regulation. I. Background LSC was created by the Legal Services Corporation Act of 1974 (“LSCA” or “the Act”), Pub.L. No. 93-355, 88 Stat. 378 (codified as amended at 42 U.S.C. §§ 2996-2996Z (1988)), “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” LSCA § 1003(a), 42 U.S.C. § 2996b(a). LSC makes and administers grants to approximately 325 local organizations that provide free legal assistance to eligible clients or perform other functions supporting the provision of legal services to clients. See LSCA § 1006(a), 42 U.S.C. § 2996e(a). The program recipients that directly assist clients (known as “basic field programs”) employ more than 4,000 attorneys and serve more than 1.3 million clients annually. Their collective service areas cover the entire United States. The Act requires basic field programs to assess the legal needs of the eligible client populations in their respective service areas and to establish caseload priorities responsive to those needs. See LSCA § 1007(a)(2)(C), 42 U.S.C. § 2996f(a)(2)(C). Although specific priorities vary, the basic field programs commit the bulk of their resources to providing legal assistance in areas such as housing, family law, entitlement programs, and consumer matters. See 54 Fed.Reg. 10,569 (1989). The basic field programs traditionally have established their priorities without interference from LSC concerning the substantive nature of the matters they may handle, although the Act itself contains a number of limitations. These include bars on the use of funds granted under the Act for, inter alia, criminal defense work, political activity, labor organizing, strikes, abortion and school desegregation litigation, and lobbying. See LSCA § 1007, 42 U.S.C. § 2996f. Recipient programs are also prohibited from using private funds for any activity proscribed by the Act. See LSCA § 1010(c), 42 U.S.C. § 2996i(c). Recipient staff attorneys are barred from engaging in political activities, see LSCA §§ 1006(e), 1007(a)(6), 42 U.S.C. §§ 2996e(e), 2996f(a)(6), and generally may not engage in the outside practice of law. See LSCA § 1007(a)(4), 42 U.S.C. § 2996f(a)(4). LSC appropriations acts in recent years have added further limitations on the use of LSC funds. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub.L. No. 101-515, § 607, 104 Stat. 2101, 2148-53 (1990) (detailing restrictions currently in effect). In March 1989, LSC published a proposed regulation prohibiting “any redistricting activity” by program recipients. 54 Fed.Reg. 10,569 (1989). After receiving and considering written comments, LSC revised the rule in certain respects and published it in final form on August 3, 1989, to be effective September 5, 1989. See 54 Fed.Reg. 31,954 (1989). The regulation defines “redistricting” as “any effort, directly or indirectly, to participate in the revision or reapportionment of a legislative, judicial, or elective district at any level of government, including influencing the timing or manner of the taking of a census.” 45 C.F.R. § 1632.2. Program recipients are prohibited under the regulation from “advocating or opposing any plan, proposal, or litigation intended to or having the effect of altering any redistricting at any level of government.” 45 C.F.R. § 1632.3. As revised prior to being finalized, the regulation makes clear that (1) litigation under the Voting Rights Act is permissible so long as it does not involve redistricting; (2) the prohibition does not prevent recipients from using public or tribal funds for the purposes for which they were provided, including redistricting (this tracks a general exception in section 1010(c) of the Act, 42 U.S.C. § 2996i(c), regarding use of such funds for otherwise prohibited activities); (3) employees of recipients may be involved in redistricting activities so long as their involvement does not make use of program resources and is done on their own time, does not involve identification with the program, and is not done in the context of legal advice and representation; and (4) the regulation does not prohibit activities permitted by 45 C.F.R. Part 1604, governing the outside practice of law by program attorneys. See 45 C.F.R. § 1632.4. LSC’s stated reason for promulgating the regulation was that redistrieting activities “are not related to the delivery of basic day-to-day legal services to the poor and are intertwined with impermissible political activity.” 54 Fed.Reg. at 10,569. LSC also argued that alternative sources of legal assistance typically are available to handle redistricting matters and that, because redistricting cases usually generate attorneys’ fees, permitting recipients to work on such cases places them in competition with members of the private bar. See id. Appellees, three basic field programs funded by LSC, filed suit in district court alleging that LSC lacked statutory authority to issue the regulation, that LSC acted arbitrarily and capriciously in promulgating the regulation, and that the regulation violates the First Amendment. The district court ruled on behalf of appellees on the basis of their statutory claim and therefore did not reach the other issues raised. The court relied primarily on section 1007(a)(2)(C) of the Act, as amended, 42 U.S.C. § 2996f(a)(2)(C), which provides that LSC shall “insure that... recipients, consistent with goals established by the Corporation, adopt procedures for determining and implementing priorities for the provision of [legal] assistance....” According to the district court, the language and legislative history of this provision demonstrate that “Congress intended that recipients be permitted to select their cases free of LSC control and subject only to congressional prohibitions.” Texas Rural Legal Aid, 740 F.Supp. at 884. The Act authorizes LSC to play only a “limited administrative role,” the court continued, and LSC’s contrary position “distort[s] the text of the LSC Act into a grant of almost unlimited policy control of the entire program.” Id. at 885. Accordingly, the court entered summary judgment in favor of ap-pellees and enjoined enforcement of the regulation. II. Analysis A. Chevron's Applicability to LSC Rule-making LSC is a federally-chartered nonprofit corporation of the District of Columbia. See LSCA § 1003, 42 U.S.C. § 2996b. Under the Act, LSC is not deemed an agency, department, or instrumentality of the federal government, nor are its directors or employees deemed to be officers or employees of the United States. See LSCA §§ 1005(e), 1004(c), 42 U.S.C. §§ 2996d(e), 2996c(c). There appear to be no federal court decisions addressing the applicability of the deference principles of Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to a federally-chartered corporation of this sort. Both parties assume that Chevron applies to interpretations of the Act by LSC and that deference therefore must be accorded to any reasonable interpretation it advances of ambiguous statutory provisions. The district court did not address the issue, although the court’s opinion suggests that no deference is owed to LSC’s position because it clearly conflicts with the Act and its legislative history. We conclude that the basic principles of Chevron apply to the statutory scheme created by the Act and the role contemplated for LSC under it. Congress has “entrusted” LSC with the duty to “administer” the Act, see Chevron, 467 U.S. at 844, 104 S.Ct. at 2782, and (as discussed more fully below) has delegated to LSC the authority to “ 'fill any gap left... by Congress.’ ” Id. at 848, 104 S.Ct. at 2782 (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974)). LSC, although not subject to the provisions of the Administrative Procedure Act (“APA”), is required to engage in notice-and-comment rulemaking under the provisions of its own Act, see LSCA § 1008, 42 U.S.C. § 2996g, indicating that Congress intended that it be treated for these purposes like an agency of the government. Moreover, Congress’s decision to create LSC as an independent corporation reflected a conscious effort to ensure its freedom from political interference. See H.R.Rep. No. 247, 93d Cong., 1st Sess. 1-2 (1973), reprinted in 1974 U.S.Code Cong. & Admin.News 3872, 3873-74; S.Rep. No. 495, 93d Cong., 1st Sess. 6 (1973). This underlying purpose further buttresses the conclusion that LSC was intended to have the full measure of interpretive authority under the Act contemplated by Chevron. Although they do not dispute Chevron’s applicability, appellees do argue that less deference should be accorded LSC’s construction of the Act here because the redistricting regulation represents a reversal of LSC policy. Appellees cite for this proposition INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), where the Supreme Court stated that “[a]n agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is ‘entitled to considerably less deference’ than a consistently held agency view.” Id. at 446 n. 30, 107 S.Ct. at 1221 n. 30 (quoting Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981)). Appellees then point to a 1978 LSC regulation stating that “[t]he specific method for setting and reporting [caseload] priorities, as well as the priorities themselves, remain a matter for decision by the recipients.” 43 Fed.Reg. 51,789 (1978). LSC does not dispute, however, that the basic field programs have authority to establish caseload priorities in accordance with local needs, arguing rather that the field programs do not possess exclusive authority to set priorities, particularly with respect to those classes of cases that LSC determines do not meet the national goals established by the Act. The regulatory statement cited by appellees simply does not address LSC’s view of its statutory authority to set priorities; it establishes only that, at that time, LSC’s policy was to allow basic field programs to set their own priorities without interference. This may demonstrate that the redistricting regulation was a “reversal of [LSC’s] former views as to the proper course” of conduct and that LSC therefore may be required to supply “a reasoned analysis for the change” in order to avoid the charge that its action was arbitrary or capricious. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983). These considerations simply are not relevant, however, to the Chevron issue raised here concerning the scope of LSC’s statutory authority. LSC's interpretations of the Act therefore must be upheld unless “Congress has directly spoken to the precise question at issue” and has resolved it against LSC, or unless the regulation cannot be termed a “permissible construction” of the Act or is arbitrary or capricious. See Chevron, 467 U.S. at 842-44, 104 S.Ct. at 2781-83. B. LSC’s Statutory Authority to Promulgate the Regulation Appellees argue, and the district court agreed, that the Act contains no affirmative authority for LSC to promulgate the redistricting regulation and that certain provisions of the Act conflict with it. They further argue that the legislative history of the Act and its amendments indicates that Congress intended basic field programs to have exclusive authority to set caseload priorities. LSC challenges all of these assertions, contending that the Act provides more than ample support for its authority to issue the redistricting regulation and that the regulation is fully consistent with all provisions of the Act and with the legislative history. We conclude that the Act clearly grants both general and specific rulemaking powers to LSC and that, although specific provisions of the Act are somewhat ambiguous concerning limitations on those powers, LSC’s interpretations of those provisions are permissible under Chevron. 1. LSC’s Rulemaking Authority Under the Act Appellees contend that the Act does not grant general rulemaking authority to LSC, but rather permits LSC to promulgate regulations only for certain enumerated purposes, none of which provides authority for the redistricting regulation. We agree with LSC that the Act clearly does grant it general rulemaking authority and that, regardless, it possessed ample authority under the Act’s more specific grants of rulemaking authority to promulgate the redistricting regulation. Initially, LSC notes that, as the Supreme Court has stated, “[t]he power of an administrative agency to administer a congres-sionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). Further, under Chevron, statutory silence or ambiguity on a particular question means that “a court may assume that Congress implicitly delegated the interpretive function to the agency....” Public Citizen v. FTC, 869 F.2d 1541, 1553 (D.C.Cir.1989). Although LSC is not deemed an agency of the federal government, it is charged with administering the Act, and its authority under the Act is phrased in expansive rather than restrictive terms. LSC is authorized, among other things, to “provide financial assistance to qualified programs,” LSCA § 1006(a)(1)(A), 42 U.S.C. § 2996e(a)(l)(A), to “make... grants and contracts as are necessary to carry out the purposes and provisions” of the Act, LSCA § 1006(a)(1)(B), 42 U.S.C. § 2996e(a)(l)(B), and to “insure that grants and contracts are made so as to provide the most economical and effective delivery of legal assistance to persons in both urban and rural areas.” LSCA § 1007(a)(3), 42 U.S.C. § 2996f(a)(3). LSC emphasizes in particular the breadth of authority conferred by the last of these provisions, noting that courts have read this language, and similar language in other statutes, to confer broad discretionary powers. See, e.g., Spokane County Legal Services, Inc. v. Legal Services Corp., 614 F.2d 662, 669 (9th Cir.1980) (application of Act’s “economical and effective delivery” provision “necessarily ‘requires the use of informed discretion’ by LSC”) (quoting SEC v. Chenery Corp., 332 U.S. 194, 208, 67 S.Ct. 1575, 1583, 91 L.Ed. 1995 (1947)); AFL-CIO v. Kahn, 618 F.2d 784, 788-92 (D.C.Cir.) (words “economy” and “efficiency” are “not narrow terms” and, when used in federal procurement statute, supported authority to deny government contracts to companies that failed to comply with voluntary wage and price standards), cert. denied, 443 U.S. 915, 99 S.Ct. 3107, 61 L.Ed.2d 879 (1979). We agree that this provision gives LSC substantial power to regulate the “delivery of legal assistance” by program recipients and supports the contention that LSC possesses general rule-making authority under the Act. Appel-lees argue that this provision should be disregarded because LSC did not rely on it in issuing the regulation, but the record clearly shows that LSC did cite section 1007(a)(3) as one of the provisions supporting its authority to promulgate the regulation. See 54 Fed.Reg. at 31,959. Other provisions of the Act provide further support for LSC’s authority to issue the redistricting regulation. First, the Act grants LSC the “powers conferred upon a nonprofit corporation by the District of Columbia Nonprofit Corporation Act....” LSCA § 1006(a), 42 U.S.C. § 2996e(a). A private corporation, certainly, has the power to set the terms of grants it makes to other entities; equally important is the fact that, as explained earlier, Congress elected this organizational form for LSC in order to ensure its independence. This strongly implies that Congress intended to give LSC considerable discretion in implementing the Act. Appellees stress in response that section 1006(a) gives LSC the powers of a D.C. nonprofit corporation only “[t]o the extent consistent with the provisions” of the Act, but that objection implicates the separate question (addressed below) of whether any specific provisions of the Act prohibit LSC from exercising its power in the manner it has here; it does not imply that LSC has anything less than the general interpretive and rulemaking authority that normally inheres in agencies or other entities charged with administering a statute. Second, the Act charges LSC with the duty to ensure that the legal services program remains free of partisan political influence and involvement. See LSCA §§ 1006(b)(5), 1007(a)(6), 42 U.S.C. §§ 2996e(b)(5), 2996f(a)(6); cf LSCA §§ 1001(5), 1006(e), 42 U.S.C. §§ 2996(5), 2996e(e). As LSC maintains, redistricting almost inevitably implicates partisan political concerns. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 2331, 37 L.Ed.2d 298 (1973) (“[politics and political considerations are inseparable from districting and apportionment”). LSC promulgated the redistricting regulation because it believed that its statutory mandate in this respect would best be implemented by “remov[ing] even the implication of impropriety from a program whose very success was determined to be dependent upon its freedom from political influence.” Smith v. Ehrlich, 430 F.Supp. 818, 823 (D.D.C.1976) (three-judge district court) (rejecting First Amendment challenge to statutory prohibition of political activities by staff attorneys of LSC recipient programs). Particularly in light of Congress’s own decision to bar legal services litigation on hotly contested issues such as school desegregation and abortion, see LSCA § 1007(b), 42 U.S.C. § 2996f(b), LSC’s decision to enact a similar ban on redistricting litigation appears consistent with one of the fundamental purposes underlying the Act. No different conclusion is compelled by the exceptions in subparts (B) and (C) of section 1007(a)(6) for “legal advice and representation” in connection with the activities prohibited therein. Those subparts generally prohibit attorneys of recipient programs from providing transportation to the polls or “similar assistance in connection with an election” and from assisting in voter registration activities. (Significantly, subpart (A) of section 1007(a)(6), which prohibits “any political activity” by attorneys of recipient programs, does not contain an exception for legal advice and representation.) We agree with LSC that redistricting activities are not encompassed within the rather narrow scope of these election-related provisions, and we therefore reject appellees’ conclusion that the exceptions for legal advice and representation contained in them constitute affirmative statutory authorization for redistricting activity. Considering all of these provisions together, we conclude that the Act invests general rulemaking authority in LSC and that the Act’s more specific grants of authority buttress LSC’s power to promulgate the redistricting regulation. 2. The Regulation’s Consistency with Other Provisions of the Act Appellees argue that even if LSC has the rulemaking powers outlined above, the redistricting regulation conflicts with certain other provisions contained in the Act. We consider each of these provisions in turn. a. Section 1007(a)(2)(C). The first provision cited by appellees, and the provision chiefly relied upon by the district court in its decision, states that LSC shall “insure that... recipients, consistent with goals established by the Corporation, adopt procedures for determining and implementing priorities for the provision of [legal] assistance....” LSCA § 1007(a)(2)(C), 42 U.S.C. § 2996f(a)(2)(C). The district court held that this provision “authorizes LSC to set goals relating to the procedures by which LSC recipients set priorities, not to itself determine substantive case priorities.” Texas Rural Legal Aid, 740 F.Supp. at 886. The district court buttressed its interpretation by contrasting the current version of this provision with the language originally enacted in 1974 and by consulting the legislative history of the 1977 amendments to the Act, which changed the provision to its present form. See id. at 883-84. Although we do not agree with LSC’s contrary position that section 1007(a)(2)(C) actually provides clear support for its authority to set substantive priorities, we do believe that the provision is ambiguous and that we should defer to LSC’s interpretation. First, the language of the provision simply does not clearly support either ap-pellees’ or LSC’s interpretation. Although section 1007(a)(2)(C) states that the procedures adopted by program recipients for setting priorities must be “consistent with goals established by” LSC, the placement of the latter phrase does not necessarily imply that only the procedures — and not also the priorities set by those procedures — must be consistent with LSC regulations. Section 1007(a)(2)(C) can just as easily be read as subordinating both the procedures and priorities adopted by local programs to the national goals established by LSC, or as simply not addressing LSC’s authority concerning priorities at all. In the latter instance, the provision would do nothing to constrain LSC’s general rule-making powers; in the former, it would supplement and support those powers. Second, the changes effected in section 1007(a)(2)(C) by the 1977 amendments to the Act do not compel the conclusion that Congress intended to place exclusive authority over caseload priorities in the hands of the local programs. As originally enacted, section 1007(a)(2)(C) directed LSC to “establish priorities to insure that persons least able to afford legal assistance are given preference in the furnishing of such assistance.” The House report accompanying the 1977 amendments indicates that the new version of section 1007(a)(2)(C) reflected Congress’s determination that establishing poverty as the sole criterion for allocating program resources risked leaving unaddressed certain legal problems of importance to the poor. See H.R.Rep. No. 310, 95th Cong., 1st Sess. 10-11, reprinted in 1977 U.S. Code Cong. & AdminNews 4503, 4512. The House report then stated: Reference to goals that may be established by the Corporation permits the Corporation to set as goals the provision of legal assistance in the most effective manner, or so as to have the greatest effect on problems of poor people, or other similar goals. The reference is not intended to detract from the rightful role of local programs, in consultation with local client communities, to set priorities concerning the substantive law matters to which scarce program resources are to be allocated. This does not require the Corporation to establish goals, but authorizes the Corporation to do so if it finds appropriate. Id. at 4513; cf. S.Rep. No. 172, 95th Cong., 1st Sess. 35 (1977). Although this passage clearly contemplates that local programs will have a major, and perhaps even preeminent, role in setting program priorities, it does not necessarily imply that LSC should exercise no control at all over those priorities. The reference to the “rightful role” of local programs in setting priorities, in conjunction with the statement that LSC may set goals “so as to have the greatest effect on problems of poor people,” arguably implies that LSC and local programs are both to play roles in establishing priorities. LSC interprets the “rightful role” of local programs to be the assessment of the peculiar local needs of client populations, while LSC’s own role is to provide caseload guidance based on considerations that it deems are not dependent on local conditions. In the instant case, LSC determined that redistricting activities raised concerns of general import analogous to those that motivated Congress to prohibit certain other categories of litigation, and it therefore acted to prohibit local programs from engaging in those activities. We believe that a reasonable construction of section 1007(a)(2)(C) and its legislative history supports LSC’s authority to make such assessments. Under this interpretation of the Act, the roles of the local programs and LSC are complementary, with each exercising authority within the realm of its special expertise. There is thus no cause for asserting, as the district court did, that LSC’s position would make the local boards “mere puppets” of LSC. See Texas Rural Legal Aid, 740 F.Supp. at 884. b. Statutory Prohibitions on Litigation. Appellees argue next that the redistricting regulation is inconsistent with the specific substantive prohibitions included in the Act by Congress {e.g., the bans on school desegregation and abortion litigation) because Congress intended those prohibitions to be exclusive. The only support appellees provide for this assertion, however, is the general evidence they adduce that Congress meant to deprive LSC of any authority to control the caseload priorities established by basic field programs. Having rejected appellees’ argument on that point, we reject their argument on this one as well. Although they do not explicitly cite it, appellees appear to rely on the canon of statutory interpretation, expressio unius est exelusio alterius (“the expression of one is the exclusion of others”). Whatever its usefulness in other circumstances, however, this canon has little force in the administrative setting. See, e.g., Cheney Railroad Co. v. ICC, 902 F.2d 66, 68-69 (D.C.Cir.), cert. denied, — U.S. -, 111 S.Ct. 519, 112 L.Ed.2d 530 (1990); Clinchfield Coal Co. v. Federal Mine Safety & Health Comm’n, 895 F.2d 773, 779 (D.C.Cir.), cert. denied, — U.S. -, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990). Under Chevron, we normally withhold deference from an agency’s interpretation of a statute only when Congress has “directly spoken to the precise question at issue,” 467 U.S. at 842, 104 S.Ct. at 2781, and the expressio canon is simply too thin a reed to support the conclusion that Congress has clearly resolved this issue. See Cheney Railroad Co., 902 F.2d at 69. Having decided that, we must defer to LSC’s refusal to read the Act in the manner suggested by the expres-sio canon if its interpretation is otherwise reasonable. See id.; Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285, 1292 (D.C.Cir.) {“Chevron implicitly precludes courts picking and choosing among various canons of statutory construction to reject reasonable agency interpretations of ambiguous statutes”) (emphasis deleted), aff'd without opinion by an equally divided Court, 493 U.S. 38, 110 S.Ct. 398, 107 L.Ed.2d 277 (1989). In any event, an equally pertinent canon of interpretation states that a congressional decision to prohibit certain activities does not imply an intent to disable the relevant administrative body from taking similar action with respect to activities that pose a similar danger. See, e.g., Mourning v. Family Publications Service, Inc., 411 U.S. 356, 372-73, 93 S.Ct. 1652, 1662-63, 36 L.Ed.2d 318 (1973); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 500 (8th Cir.), cert. denied, 479 U.S. 915, 107 S.Ct. 317, 93 L.Ed.2d 290 (1986). The ex-pressio maxim is inappropriate in the administrative context, these cases suggest, because its application “would undermine the flexibility sought in vesting broad rule-making authority in an administrative agency.” Mourning, 411 U.S. at 372, 93 S.Ct. at 1662. Indeed, a congressional prohibition of particular conduct may actually support the view that the administrative entity can exercise its authority to eliminate a similar danger. Id. at 372-73, 93 S.Ct. at 1662-63. Here, LSC determined that the dangers of entanglement in controversial local issues such as school desegregation and abortion were presented as well by redistricting litigation and, accordingly, justified imposing a similar ban on program recipients. Particularly in light of the Act’s mandate to LSC to ensure that the legal services program remain free from partisan political involvement, we cannot conclude that LSC’s position is based on an unreasonable interpretation of the Act. See Herman & MacLean v. Huddleston, 459 U.S. 375, 387, 103 S.Ct. 683, 689-90, 74 L.Ed.2d 548 (1983) {expressio maxim and other canons of interpretation “ ‘long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose’ ”) (quoting SEC v. C.M. Joiner Leasing Corp.; 320 U.S. 344, 350-51, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943)). c. Section 1010(c). Appellees' next argument is more narrowly drawn but also relies implicitly on the expressio maxim. They claim that the redistricting regulation’s prohibition on the use of private funds by program recipients for redistricting activities conflicts with section 1010(c) of the Act, 42 U.S.C. § 2996i(c), which provides that private funds received for the provision of legal assistance “shall not be expended by recipients for any purpose prohibited by this subchapter....” This provision was intended to prevent local programs from “contravenpng] the other restrictions in the act by attributing them to the non-Federal share of funds contributed to such programs.” 120 Cong.Rec. 24,026 (1974) (summary of Act by Senator Nelson). Appellees read into section 1010(c) a congressional intent to bar use of private funds only for purposes prohibited by the Act itself (as they try to read a similar exclusivity into Congress’s enactment of those prohibitions), but the only support they provide for this assertion, other than the language of the provision and similar language in the legislative history, is the fact that Congress has on several occasions overridden by statute other LSC regulations that limited the use of private funds by program recipients. See, e.g., Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub.L. No. 101-515, § 607, 104 Stat. 2101, 2152 (1990) (use of private funds for legislative representation); id,., 104 Stat. at 2153 (use of private funds for financially ineligible clients). Reliance on subsequent legislative history of this sort, however, is notoriously suspect and “ ‘form[s] a hazardous basis for inferring the intent of an earlier [Congress].’ ” Jefferson County Pharmaceutical Ass’n v. Abbott Laboratories, 460 U.S. 150, 165 n. 27, 103 S.Ct. 1011, 1021 n. 27, 74 L.Ed.2d 882 (1983) (quoting United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331-32, 4 L.Ed.2d 334 (1960)). In any event, consulting these later actions by Congress does not persuade us that they support appellees’ position. Notably, Congress did not respond to LSC’s prior regulations on the use of private funds by enacting a general provision barring LSC from imposing limitations in excess of those provided by the Act, nor has Congress taken any action with respect 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_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. HARRIS v. RAILWAY EXPRESS AGENCY, Inc. No. 3911. United States Court of Appeals Tenth Circuit. Nov. 7, 1949. Rehearing Denied Dec. 7, 1949. Jacob A. Dickinson and David Prager, Topeka, Kan. (Edward Rooney, Topeka, Kan., was with them on the brief), for appellant. Thomas M. Lillard, Topeka, Kan. (O. B. Eidson, Philip H. Lewis, and James W. Porter, Topeka, Kan., were with him on the brief), for appellee. Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges. HUXMAN, Circuit Judge. This action by appellant, Floyd Harris, was brought in the District 'Court of Shawnee County, Kansas, to recover damages for personal injuries. The case was removed to the United States District Court for the District of Kansas, First Division. An answer was filed. The depositions of the plaintiff, his wife, and his brother-in-law were taken and filed in court. Thereafter a motion for summary judgment was made by defendant. Upon the hearing of this motion, the parties stated to the court that with the exception of the issue as to the nature of the relationship between the plaintiff and the defendant at the time plaintiff was injured, as alleged in the complaint, there were no material facts about which there was any substantial controversy between the parties. The court, thereupon, sustained the motion, and judgment was entered for the defendant, and this appeal followed. While a number of assignments of error are urged for reversal, we think the disposition of the appeal depends upon the answer to two questions: First, was plaintiff an emergency employee, and, second, if so, were there acts of negligence pleaded which would make defendant liable to such an employee. . ,, On a motion for summary judgment, all facts of the complaint well pleaded stand admitted.On a consideration of such a motion, the court not only considers the allegations of the complaint but also all facts shown by depositions and affidavits concerning which there can be no dispute. The material facts of the complaint are that appellant procured the Railway Express Agency, Inc., the appellee, to deliver a trunk, weighing in excess of 230 pounds, to himself at 2115 Virginia Street, Topeka, Kansas; that around noon, September 14, 1946, one of appellee’s trucks stopped in front of the above address with the trunk aboard; that because of the weight thereof, it was impossible for one man to unload it; that this appellee knew, or by the exercise of reasonable care should have known, at the time the trunk was dispatched; that the truck was not equipped with skids, pulleys, or with any other appliances to make it possible to unload, with safety, to the persons unloading it; that upon arrival of the trunk at appellant’s house, the driver, acting within the scope of his employment and for appellee’s benefit, informed appellant that it would be impossible for him alone to unload the trunk, and asked appellant to assist him ; that in response to such request, appellant started to assist appellee’s driver, and in so doing was thrown to the ground by the weight of the trunk, causing him to slip and fall and to suffer severe injuries. The complaint alleged that appellee was negligent in failing to furnish skids, pulleys, or other appliances to enable the parties to unload the trunk with safety to themselves, and by failing to furnish a sufficient number of employees, including appellant, to perform the task of unloading the trunk, with safety. Whether appellant was an emergency employee, is not free from doubt. Kansas has not dealt exhaustively nor clearly with the doctrine of an emergency employee. In Hockenberry v. Capital Iron Works, 96 Kan. 548, 152 P. 628, 629, reference is made to the Rule. The Rule as to what constitutes an emergency employee is well stated in 35 Am.Jur., Master and Servant, § 164, as follows: “While there is authority to the contrary, the prevailing view is that an employee who is confronted with an unforeseen situation which constitutes an emergency, which rendered it necessary, in his employer’s interest, that the employee have temporary assistance, is to be deemed to have had implied authority to procure necessary help and thus create between the employer and the emergency assistant the relationship of master and servant, which will engage responsibility on the part of the employer to the assistant for injuries chargeable to the neglect of the employer.” There is some divergence in the decisions as to the -state of facts necessary to create an emergency so as to bring the rule into operation. No need exists, however, to discuss or analyze these cases in detail. For the purpose of the opinion, we will assume that there was an emergency warranting the servant of appellee to ask for assistance, and that appellant became an emergency employee. The question then is, what acts of negligence were committed by appellee, after appellant became an emergency employee, upon which liability may be predicated. The only allegation of acts of negligence thereafter, upon which liability could possibly be predicated, is that appellee was negligent “in failing to furnish -a sufficient number of employees, including plaintiff,” to unload the trunk. In other words, the allegation is that appellee was negligent in furnishing only two employees to unload a trunk weighing 230 pounds. While appellant pled that the trunk “weighed in excess of 230 pounds”, we think the fair inference is that the trunk weighed approximately 230 pounds. The weight of such a trunk, the amount of ex•ertion required to lift it -and move it to its storage place, is a simple fact concerning which all have common knowledge. We think that common knowledge of man’s physical powers -compels the conclusion that 230 pounds is not a great weight for two men to carry. That conclusion is fortified by the fact that after the accident to appellant, the driver of the truck -and appellant’s brother-in-law, immediately and without incident, moved the trunk to its storage place. Appellant’s allegation that two men were insufficient to carry a 230 pound trunk pleads a conclusion and not an ultimate fact. Since there was no dispute of a single substantive fact, the case was an appropriate one for disposal by summary judgment. We rest our conclusion affirming the judgment on the ground that the undisputed facts failed to show negligence on the part of appellee upq-n which liability for the injuries suffered by appellant may be predicated. Affirmed. . Furton v. City of Menasha, 7 Cir., 149 F.2d 945; Drummond v. Clauson, D.C., 67 F.Supp. 872; United States v. Hartford-Empire Co., D.C., 73 F.Supp. 979. . Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A.; Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469; Fresh Grown Preserve Corp. v. United States, 6 Cir., 143 F.2d 191. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_circuit	G	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. FIDELITY-PHENIX INS. CO. et al. v. CHICAGO TITLE & TRUST CO. (Circuit Court of Appeals, Seventh Circuit. April 10, 1926.) No. 3662. 1. Insurance <@=>268. Breach of express warranty in marine policy of insurance bars recovery whether or not it caused the loss. 2. Insurance <@=>272 — Insurer held not liable on marine policy on vessel “warranted passenger steamer,” which was not used, licensed, nor lawfully equipped for carrying passengers (Comp. St. § 8260). A provision in a marine policy, “warranted passenger steamer,” bars recovery on the policy for her loss, where at no time between issuance of the policy and her loss was she used or licensed to carry passengers and she was not equipped with water-tight bulkheads as required of passenger steamers by Comp. St. § 8260. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Hlinois. Suit in admiralty on a marine insurance policy by the Chicago Title & Trust Company, receiver, against the Eidelity-Phenix Insurance Company and others. Decree for libelant, and respondents appeal. Reversed. John S. Lord, George L. Wire and Charles L. Cobb, all of Chicago, Ill. (D. Roger Englar and Henry N. Longley, both of New York City, of counsel), for appellants. Charles E. Kremer, of Chicago, Ill., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. Libel on a marine insurance policy issued by the appellants upon the steamer Norland. The policy covered .the period from September 8, 1922, to September 8, 1923. On November 12, 1922, while proceeding from Chicago to Milwaukee, partially loaded with freight, the steamer sprang a leak, the pumps gave out, and she went to the bottom — a total loss. The policy contained the following: “Warranted passenger steamer. “Warranted confined to Lake Michigan and tributaries but including trip from Boston, Mass., to Chicago and/or Milwaukee by a port or ports with privilege of stopover at Buffalo for the purpose of alterations.” The steamer was bought in New York in August, 1922, insured there, and brought to Chicago in October. The principal defense is a breach of the warranty that the steamer was a passenger steamer. In the view we take of this question it will not be necessary to notice other contentions. The rule is that a breach of an express warranty in a policy of insurance bars a recovery whether it caused the injury or not. Arnold on Marine Insurance and Average (10th Ed.) vol. 2, §§ 632, 633; 38 Corpus Juris, p. 1064. This warranty is an express warranty as to an existing fact. It is expressed in the body of the policy, written in the face of it, is part of the contract, and must be strictly and fully true or the policy cannot be enforced. The authorities hold that an express warranty is a condition precedent, the burden of which- rests upon the assured. “The terms of the policy constitute the measure of the insurer’s liability, and, in order to recover, the assured must show himself within those terms. * * The compliance of the assured with the terms of the contract is a condition precedent to the right Of recovery.” Imperial Eire Ins. Co. v. County of Coos, 151 U. S. 452, 14 S. Ct. 379, 38 L. Ed. 231; McLoon v. Commercial Mutual Ins. Co., 100 Mass. 472, 97 Am. Dec. 116, 1 Am. Rep. 129. But the decision of this ease does not turn upon where the burden of proof lies. The evidence upon the character of the steamer is all one way. The material facts as to her construction, equipment, and use are not disputed. At no time from her purchase in August, 1922, to the time when she sank was she used or licensed to carry passengers. From her arrival at Chicago she was licensed to and carried only freight. In outward appearance (a photograph of her appears in the record) she must have been constructed so as to carry some passengers. Many steamers on the Great Lakes carry both passengers and freight. Appellee insists she was a passenger steamer because she was equipped to carry passengers. After reciting the arrange- , ments for the convenience and comfort of passengers, appellee in its brief says: “She was therefore perfectly equipped, not only for day passengers or excursion passengers, but for carrying passengers on night trips. She had the staterooms, the cabins, and dining rooms for both sexes; every convenience, with boats and life preservers in sufficient number and capacity to care for the passengers.” This equipment, plus the picture, is the whole of the evidence upon which we are asked to-hold that she was a passenger steamer. Witnesses on both sides were asked to say whether she was „a passenger or freight steamer. Some said passenger, some said freight, and some said passenger and freight. These answers were mere conclusions or opinions of the witnesses upon the question, which was for the court to decide, and cannot aid, much less control, th'e solution of it. A statute of the United States (Comp. St. § 8260) provides: “Every sea-going steamer, and every steamer navigating the great northern or northwestern lakes, carrying passengers, the-building of which shall be completed after the 28th day of Augmst, 1871, shall have not less than three water-tight cross bulkheads, such bulkheads to reach to the main deck in single-' decked vessels, otherwise to the deck next below the main deck, to be made of iron plates, sustained upon suitable framework, and to be properly secured to the hull of the vessel. The position of such bulkheads and the strength of material of which the same shall be constructed shall be determined by the general rules of the board of supervising inspectors.” The general rules and regulations prescribed by the board of supervising inspectors provide: “Every sea-going steamer, and every steamer navigating the great northern and northwestern lakes, carrying passengers, shall have not less' than three water-tight cross bulkheads. Such bulkheads shall reach to the main deck in single-decked vessels, otherwise to the deck next below the main deck. Por wooden hulls they shall be fastened to suitable framework, which framework must be securely attached to the hull and caught. For iron hulls they shall be well secured to the framework of the hulls and strengthened by stanchions of angle iron placed not more than two feet from center to center. One of the bulkheads must he placed forward and one abaft the engines and boilers. “The third or collision bulkhead must be placed not nearer than five feet from the stem of the vessel. Iron bulkheads must be made not less than one quarter of an inch in thickness, and wooden bulkheads must be of equal strength and covered with iron plates not less than one sixteenth of an inch in thickness.” No steamer can engage in carrying passengers on the Great Lakes unless she is equipped with three water-tight cross bulkheads. The evidence shows that the Norland, which was built in 1890, did not have three water-tight cross bulkheads. She had no water-tight bulkheads at all. Bulkheads are measures of safety against the danger of sinking. Requirements for safety of passengers would appear to be more important than those for their convenience and comfort. But we are not concerned with the relative importance of these requirements. Whatever other equipment she may have or be required to have, a steamer, to be qualified to engage in carrying passengers, must be equipped with bulkheads as the statute and the regulations require. If not so equipped, she cannot lawfully do that for which a passenger steamer is intended — cannot carry passengers. The evidence shows that it was not intended to use this vessel as a passenger steamer. Libelant’s witness Larsen, who was sent to bring the steamer from New York, testified that when he took her over he turned her cabins into crew’s quarters and tore out some of the bulkheads. The evidence shows that this steamer was not intended to he and was not used or licensed to carry passengers; that she was intended to be and was used and licensed to carry freight only; that she was not equipped in important particulars as passenger boats are by law required to be equipped, and was not in fact a passenger steamer. A breach of the warranty clearly appearing, the decree is reversed, with directions to dismiss the libel. 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_dissent	1	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. UNITED STATES of America, Plaintiff-Appellee, v. Amos A. HOPKINS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry PETERMAN, Defendant-Appellant. Nos. 81-1271, 82-1100. United States Court of Appeals, Tenth Circuit. July 10, 1984. Submission to Panel in No. 82-1100 Vacated July 10, 1984. Mary E. Bane, of Oyler, Smith & Bane, Oklahoma City, Okl., for defendant-appellant in 81-1271. Jerome H. Mooney, Mooney & Smith, Salt Lake City, Utah, Michael P. Carnes, Dallas, Tex., James H. Barrett, Cheyenne, Wyo., for defendant-appellant in 82-1100. David L. Russell, U.S. Atty., John R. Osgood, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee in 81-1271. Richard A. Stacy, U.S. Atty., Francis Leland Pico, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee in 82-1100. Before SETH, Chief Judge, HOLLOWAY, McWilliams, barrett, mckay, LOGAN and SEYMOUR, Circuit Judges. SETH, Chief Judge. These two cases were consolidated for en banc consideration on the briefs on motion by the court. In United States v. Hopkins, 81-1271, the defendant was tried and convicted on a multiple count indictment charging mail fraud (18 U.S.C. §§ 2 and 1341) and conspiracy to use the mails to defraud. The only issue considered by the court en banc was whether adequate instructions had been given on the defense of good faith. The panel opinion appears at 716 F.2d 739 (10th Cir.). In United States v. Peterman, 82-1100, the basic defense to the mail fraud charge was good faith. The defendant requested an instruction on the point and it was refused. The case was originally submitted to a panel of this court but no opinion was filed. As mentioned, it was consolidated with United States v. Hopkins for en banc consideration of the instruction on the good faith defense. We have stated in several cases that “good faith” is a defense to charges of using the mails to defraud. This was so held in Steiger v. United States, 373 F.2d 133 (10th Cir.), wherein we said: “Good faith is a complete defense to a charge of using the mails to defraud in violation of § 1341, supra, and a defendant is entitled to proper instructions on the theory of his defense, if, as here, there is evidence to support such theory.” In Steiger, the charges were brought under 18 U.S.C. § 1341. See also United States v. Roylance, 690 F.2d 164 (10th Cir.), United States v. Westbo, 576 F.2d 285 (10th Cir.), and Sparrow v. United States, 402 F.2d 826 (10th Cir.). Thus if the defense of good faith has been interposed the defendant is entitled to an instruction directly on the issue provided there is sufficient evidence to support the theory and such an instruction is requested. Whether there is “sufficient” evidence to support the theory is determined as in any other trial where the question arises as to whether a particular matter should be submitted to a jury. In mail fraud cases there is sufficient evidence when the jury could reasonably find from such evidence that the defendant in good faith believed that the plan would succeed, that the promises made would be kept and the representations carried out. This is best stated again in Steiger v. United States, 373 F.2d 133 (10th Cir.): “Each defendant interposed the defense of ‘good faith.’ There was evidence from which the jury could have found that each defendant in good faith believed that the referral plan was practical and would succeed, however visionary in retrospect it may seem to be, and that the promises given would be kept and the representations made would be fulfilled.” That the plan, with the benefit of hindsight at time of the trial, may seem to have been somewhat visionary or not completely practical makes no difference if the defendant actually believed the plan would succeed, that the representations would be carried out and the promises were true. In Hawley v. United States, 133 F.2d 966 (10th Cir.), we also referred to “visionary plans” but of course not part of a plan to defraud. Thus the approved instructions there covered promises made in good faith and “not as a part of a deliberate plan or scheme to defraud.” The “good faith” in Hawley included the above requirements as to the representations , and promises as necessary ingredients with the actual belief in the plan. Requested instructions which were approved by the court and instructions given appear in the cited cases. The determination by the jury as to whether a good faith defense has been established requires a consideration under proper instructions of elements which are all peculiarly within the province of the jury. The “good faith” instruction is required to be given as a separate subject. Thus instructions on wilfulness, on aspects of intent, on untruth of representations or fraudulent statements are not sufficient for this purpose. There must be a full and clear submission of the good faith defense as such. United States v. Steiger, 373 F.2d 133 (10th Cir.). See also United States v. Beitscher, 467 F.2d 269 (10th Cir.); Mesch v. United States, 407 F.2d 1286 (10th Cir.). Our holding as to the need for a good faith instruction in the above cases is intended to apply to both substantive and conspiracy counts for mail or wire fraud. In United States v. Westbo, 576 F.2d 285 (10th Cir.), we considered a requested instruction which was directed to intent and was so evaluated. The case does not constitute a holding on the issue here decided; however, to the extent it may be considered to be contrary to this opinion, it is overruled. 81- 1271 — United States v. Hopkins: The opinion in United States v. Hopkins, our No. 81-1271, which was originally entered, and which appears at 716 F.2d 739 (10th Cir.), is withdrawn. In our initial consideration of the record in Hopkins it was determined that there was sufficient evidence to support an instruction on defendant’s theory of good faith. The defendant requested instructions which were proper. The instructions given did not submit the issue of good faith. The judgment of the trial court in United States v. Hopkins, 81-1271, as to Counts I through XI, must be and is set aside, and the case is remanded for a new trial as to such counts. IT IS SO ORDERED. However, as to Count XIV for conspiracy there was insufficient evidence to support the judgment as to that count, and on remand it must be dismissed, and IT IS SO ORDERED. 82- 1100 — United States v. Peterman: In Peterman, the charge was brought under 28 U.S.C. § 1291. We must and do hold that there was sufficient evidence to require the submission of the good faith defense to the jury. As in Hopkins, herein considered, an adequate instruction as to the good faith defense was requested but not given, and the judgment must be set aside and the case remanded for a new trial. IT IS SO ORDERED. Question: What is the number of judges who dissented from the majority? Answer:
songer_casetyp1_4-3	C	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 "due process". Arnold A. SMITH and Rachael Smith, his wife, and Herbert Smith and Evelyn Smith, his wife, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. No. 26027. United States Court of Appeals, Ninth Circuit. April 18, 1972. Steven Schwarz (argued), William Massar, Meyer Rothwacks, Johnnie M. Walters, Asst. Atty. Gen., Washington, D. C., Richard K. Burke, U. S. Atty., Richard C. Gormley, Asst. U. S. Atty., Phoenix, Ariz., for defendant-appellant. Jarril F. Kaplan (argued), of Moore, Romley, Kaplan, Robbins & Green, Phoenix, Ariz., for plaintiffs-appellees. Before HAMLEY, KOELSCH and CARTER, Circuit Judges. PER CURIAM: Herbert and Arnold Smith, together with their respective wives, commenced this suit in the District Court against the United States to recover damages for the use of their warehouse. Jurisdiction was invoked under the Tucker Act. The matter is here on the appeal of the United States from a judgment for the Smiths. The facts are undisputed. On May 8, 1964, United States Internal Revenue Service executed a distraint warrant for unpaid taxes owing by Lichty Printing and Business Forms, Inc. Levy was made upon Lichty printing presses and other equipment in Smiths’ building, which Lichty had been renting on a monthly basis. The seizure was accomplished by simply padlocking the building and posting the customary notices. The Smiths thereupon notified the government agents that Lichty had failed to pay rent for several months and demanded that the government either vacate the premises or pay for their use. They informed the government's agents that the rental would be at the rate of $45.00 per day, that being the sum exacted of Lichty. The agents declared this sum excessive, but did not relinquish possession. On June 5, 1964, Lichty was adjudicated a bankrupt on a voluntary petition and a receiver was appointed pending selection and qualification of a trustee. Several days later, the government, without notice to the Smiths, delivered the keys to the receiver for Lichty, who continued in possession of the premises until October 12, when the printing equipment was sold and removed. The receiver then turned the keys over to the Smiths. The Smiths predicated their claim alternatively on a theory of an implied contract or a taking of property without compensation, in violation of the Fifth Amendment. The trial court predicated judgment upon the inverse condemnation theory and did not discuss implied contract. On this appeal the government contends it did not take the Smiths’ property. In substance, the government argues that the lease between the Smiths and Lichty remained in effect throughout the period that the building was padlocked; that, since the Smiths never terminated the tenancy by judicial proceedings, the Smiths had no right to possession with which the government could interfere. We must disagree. Under Arizona law, a month-to-month tenancy may be terminated for nonpayment of rent without notice to the tenant. Ariz.Rev.Stat. § 33-341, subsec. B. After a tenant has been in arrears in his rent for five days, the landlord may “re-enter and take possession, or, without formal demand or re-entry, commence an action for recovery of possession of the premises.” Ariz.Rev.Stat. § 33-361, subsec. A. The landlord’s right to possession accrues as soon as the tenant becomes five days in arrears in rent. We do not have to decide whether a landlord might, under Arizona law, be required to resort to judicial proceedings to evict a tenant who prevents a landlord from retaking possession for, in this case, it was the government, not the tenant, who refused to let the landlords reenter their building. From the outset, the government was fully aware that the Smiths insisted upon either possession of the premises or rental for their use. “ [I]f the United States occupies a person’s premises, it is, ordinarily, liable for the rental value thereof even though it occupies them against the will of the owner and without an intention on the part of the United States to pay rent. This liability arises under the Fifth Amendment prohibiting the taking of private property without the payment of just compensation.” Niagara Falls Bridge Comm. v. United States, 76 F.Supp. 1018, 1019, 111 Ct.Cl. 338 (1948). The government, of course, enjoyed the right to seize Lichty’s property to enforce its tax lien. However, it did not have the right to seize the property of the Smiths and to use the same as a storage facility without running afoul of the Fifth Amendment. The Smiths were entitled to compensation. Carroll v. United States, 229 F.Supp. 891 (W.D.Ark.1964); Feldwin Realty Co. v. United States, 169 F.Supp. 73, 76-77 (D.N.J.1959). The judgment is affirmed. . The Act, so far as is relevant, is codified in 28 U.S.C. § 1346(a) (2), which provides: “(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: $ * * * $ (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department [of the United States], or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” . This case was previously here in 1966. Smith v. United States, 362 F.2d 366 (9th Cir. 1966). We concluded that the nature of Lichty’s tenancy was unclear and remanded the matter to the district court for a determination. Upon such remand the parties stipulated that, although the Smiths and Lichty had contemplated entering into a formal lease for a term of years, no such agreement was ever executed; that “in October 1961 Lichty went into possession of the premises on a month to month tenancy at a rental of $1350.00 per month or $45.00 per day.” . The government argues that, in any event, it should not be liable for rent beyond June 12, 1964, the date on which it gave the keys to the building to Liehty’s receiver. However, the agreement between the Internal Revenue Service and the receiver, under which the transfer was made, stated that the property being turned over to the receiver was the “[p]roperty of Lichty Printing & Business Forms, Inc., bankrupt, which was levied upon and seized prior to the filing of the Petition in Bankruptcy . . . ” The “property” referred to in this agreement was only that to which the government was lawfully entitled to possession- — Lichty’s printing equipment. Since the transfer of the keys to the receiver was made without notice to tire Smiths and the Internal Revenue Service seizure notices and padlock were kept on the building until the receiver’s sale, we agree with the District Court that the government’s occupancy of the building continued until the premises were returned to the Smiths. The receiver’s possession of the premises was derived from the government, not the bankrupt ; and the initial taking being wrongful, the government remained liable until the premises were returned. Feldwin Realty Co. v. United States, 179 F.Supp. 70, 72 (D.N.J.1959). Question: What is the specific issue in the case within the general category of "due process"? A. denial of fair hearing or notice - government employees (includes claims of terminated government workers) B. denial of hearing or notice in non-employment context C. taking clause (i.e., denial of due process under the "taking" clause of the 5th or 14th Amendments) D. freedom of information act and other claims of rights of access (includes all cases involving dispute over requests for information even if it does not involve the freedom of information act) E. other due process issues Answer:
songer_origin	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS, AFL-CIO, and Cincinnati Local American Federation of Television and Radio Artists, AFL-CIO, Respondents. No. 14245. United States Court of Appeals Sixth Circuit. Jan. 19, 1961. Hans J. Lehmann, National Labor Relations Board, Washington, D. C., Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin J. Wells, Attorney, National Labor Relations Board, Washington, D. C., on brief for petitioner. Milton H. Schmidt, Cincinnati, Ohio, Mortimer Becker, New York City, on brief for respondents. Before MILLER, CECIL and O’SULLIVAN, Circuit Judges. PER CURIAM. This case is before the Court upon a petition of the National Labor Relations Board to enforce its order of December 17, 1959, against the respondents. At the conclusion of the oral argument, counsel for the Board confessed a procedural error. This was subsequently confirmed in a supplemental memorandum submitted on behalf of the Board. The Trial Examiner refused to require pre-trial statements taken by the General Counsel of witnesses Vernon S. Thornburgh and Gil Sheppard to be given to counsel for the respondents. Excerpts of the testimony of Vernon S. Thornburgh are in the appendix of the petitioner, at pp. 251a to 274a, and in the appendix of the respondents at pp. 90b to 133b. Excerpts of Gil Sheppard’s testimony appear in the petitioner’s appendix, at pp. 274a to 294a, and in the respondent’s appendix at pp. 133b to 154b. The production of such statements, at the time of the hearing, before the Trial Examiner, was prohibited by regulation of the Board. Subsequently the Board reversed its position, and following N. L. R. B. v. Adhesive Products Corp., 2 Cir., 258 F.2d 403, held that the principle announced in Jeneks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was applicable to Board proceedings. App. 29 U.S.C.A. Rules and Regulations, Section 102.95. In conformity with this changed position, counsel for the Board, on its behalf, confessed procedural error. To correct this error, they request the Court to disregard the testimony of witnesses Thornburgh and Sheppard. Counsel advance the argument that without the testimony of these two witnesses there is still sufficient evidence to support the order of the Board. In considering a petition for the enforcement of an order, our function is to review the record of the proceedings before the Board, its findings of fact and conclusions of law. This Court cannot reverse or modify an order of the Board on questions of fact, unless there is a lack of substantial evidence to support it. Sec. 160(e), Title 29 U. S.C.A. We cannot speculate on what findings the Board would have made without the testimony of Thornburgh and Sheppard. For us to weigh the evidence without the testimony of these two witnesses would put us in a position of making original findings of fact instead of reviewing the findings of the Board. The case will be remanded to the Board with instructions to correct its procedural error in a rehearing of the charges of unfair labor practices, or to make its findings of fact upon the evidence exclusive of the testimony of witnesses Thornburgh and Sheppard. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_appel2_5_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Mary Rose TURNER, individually and t/a Rosie’s Place II; John F. Turner, individually and t/a Rosie’s Place II, Plaintiffs-Appellees, v. Charles DAMMON, Detective Sergeant, Walter Currence, Corporal; Joseph J. Casper, Trooper; Harry Edwards, Trooper; Jan Roth, Corporal, Defendants-Appellants. and William Bell, Deputy Sheriff; James Goldsmith, Deputy Sheriff, Defendants. No. 86-3628. United States Court of Appeals, Fourth Circuit. Argued March 5, 1987. Decided May 3, 1988. James Joseph Doyle, III, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, Md., on brief), for defendants-appellants. Lee Saltzberg (Paul R. Kramer, Baltimore, Md., on brief), for plaintiffs-appel-lees. Before WINTER, Chief Judge, WILKINSON, Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation. WILKINSON, Circuit Judge: Charles Dammon, Harry Edwards, Jan Roth, Walter Currence, and Joseph Casper, members of the Maryland State Police, appeal the denial of their summary judgment claim of qualified immunity from a suit brought against them under 42 U.S.C. § 1983 by Rose and John Turner, the owners of a bar known as “Rosie’s Place II.” We affirm the denial of qualified immunity as to Dammon and Edwards because the record raises a triable issue as to whether their conduct in performing a series of administrative searches at Rosie’s violated clearly established Fourth Amendment standards of which a reasonable person would have known. The record makes clear that Roth, Currence, and Casper were far less involved in the alleged unconstitutional conduct, however, and we hold that they are entitled to summary judgment based on qualified immunity. I. Rosie’s Place II is a topless bar in St. Mary’s County, Maryland. The record shows that between late 1982 and the filing of the Turners’ action in January 1985, the defendants and other officers of the Maryland State Police and St. Mary’s County Sheriff’s Department conducted numerous searches of Rosie’s Place and the Turners’ residence. The Turners specified several of the officers’ actions as the basis of their suit. On November 5, 1982, a number of officers, including Dammon, Edwards, Casper, and Currence arrested several dancers and waitresses at Rosie’s Place for violations of the Maryland “Female Sitters” statute, Md.Ann.Code art. 27, § 152 (1983). The statute forbids employment of female “sitters” to solicit drink orders from patrons of a bar or other establishment. Rose Turner’s conviction under the statute was overturned on the ground that the statute violated the Maryland equal rights amendment, Turner v. State, 299 Md. 565, 474 A.2d 1297 (1984), and the charges against the other arrestees were dropped. On November 19, 1982, Dammon, Edwards, Currence, and Roth, acting under a valid search warrant, entered the Turners' home in Lexington Park, Maryland. The officers seized books, records, and papers from the Turner residence as part of their investigation of the alleged Female Sitters violations. On May 31, 1983, Dammon and Casper entered Rosie’s Place to conduct a “bar check” under Md.Ann.Code art. 2B, § 190, which provides for warrantless searches of “any building, vehicle and premises in which any alcoholic beverages are authorized to be kept, transported, manufactured or sold.” The plaintiffs allege that the officers searched through books and records, storage areas, and examined items in all parts of the premises. Aside from these specific searches, plaintiffs allege that between late 1981 and early 1985, Dammon, Edwards, and other officers, either unnamed or not parties to the suit, entered Rosie’s at least one hundred times to conduct bar checks under Md.Ann. Code art. 2B, § 190. These checks are alleged to have occurred during the busiest hours at the bar, and to have caused patrons to leave the bar. Plaintiffs also allege that officers of the Maryland State Police and St. Mary’s County Sheriff’s Department took up positions outside Rosie’s Place to discourage patrons from entering. None of the defendants is specifically named in this allegation, however. The defendants filed affidavits detailing their involvement in these events. Dam-mon and Edwards acknowledge that they participated in a large number of bar checks at Rosie’s, and the record indicates that at least one hundred searches were conducted during the relevant period. Dammon has admitted that more checks were conducted at Rosie’s than at any other bar, and that the checks never produced any citations or arrests. In support of these actions he has made only the statement, unsubstantiated by any records or statistics, that a disproportionate number of calls for police service came from Rosie’s. After the Turners filed their suit, the defendants moved for summary judgment on the basis of qualified immunity. The trial court granted summary judgment with respect to each of the individual acts alleged as the basis for the plaintiffs’ claim. The court found the Female Sitters arrests supported by probable cause and made under a statute which, although later held unconstitutional, was presumably valid at the time of the arrests. The court held that the search of the Turner home was conducted pursuant to a valid warrant, and that none of the individual bar checks in themselves violated established constitutional rights. The court, however, denied the defendants’ motion with respect to the totality of the officers’ acts, which it characterized as a “pattern of harassment.” The court held that the record raised a triable issue as to whether improper motives on the part of the defendants rendered the series of bar checks a violation of the plaintiffs’ clearly established property right to “engage in any of the common occupations of life,” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). From this ruling, the defendants appeal. II. Although an interlocutory order, the denial of a motion for summary judgment based on a claim of qualified immunity is an appealable “final decision” under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The public official’s qualified immunity is an “entitlement not to stand trial or face the other burdens of litigation” in certain circumstances. Id. at 526,105 S.Ct. at 2816. Unlike a defense to liability, qualified immunity is “effectively lost if a case is erroneously permitted to go to trial.” Id. The immunity is intended to allow public officials to act “with independence and without fear of consequences” where their actions do not implicate clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982). This purpose cannot be achieved if officials face the possibility that they will have to stand trial without any opportunity for review of denials of their summary judgment claims of qualified immunity. In reviewing the denial of a summary judgment motion based on qualified immunity, we look to the standard of immunity set forth in Harlow. Under Harlow, the summary judgment standard is one of the “objective reasonableness” of official conduct. Id. at 818, 102 S.Ct. at 2738. Officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known.” Id. Of course, if the plaintiff fails to allege “a violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2816. Where the acts alleged by the plaintiff do constitute a violation of clearly established rights, a defendant is entitled to summary judgment if the record does not create a genuine issue as to whether the defendant in fact committed those acts. Id. Employing the standard of Fed.R.Civ.P. 56, we must determine, reading the pretrial record in the light most favorable to the plaintiffs, if an issue of triable fact exists as to whether defendants’ conduct violated the plaintiffs’ clearly established rights. We thus review the defendant’s summary judgment motion under the “same standard as did the trial court.” White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986). Following Mitchell, the circuits have taken different views on the proper scope of review of denials of qualified immunity. The First Circuit has held that reviewing courts should look only to the allegations in the plaintiff’s complaint, and determine whether those allegations describe a violation of clearly established law. Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986). Under this view, even where a well-developed pretrial record reveals undisputed facts, the reviewing court is to ignore the record and confine itself to the allegations in the complaint. See Bonitz, 804 F.2d at 167. We reject this approach, because it eviscerates the purposes of qualified immunity that prompted the court in Mitchell to allow these appeals. The purposes of qualified immunity are well stated in Harlow: “[w]here an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Harlow, 457 U.S. at 819, 102 S.Ct. at 2739 (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed. 2d 288 (1967)). Qualified immunity thus protects government officials not only from liability, but from trial, in recognition of the fact that subjecting officials unnecessarily to trial leads to “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Id. at 816, 102 S.Ct. at 2737. Mitchell therefore concluded that because qualified immunity is a right not to stand trial, the right cannot be vindicated by appellate .review after final judgment. Vindication of the right thus requires that the court of appeals not confine itself to the complaint. Rather, we must inquire “whether, when all the facts are viewed in the light most favorable to the plaintiff, there is a genuine issue, triable to a jury,” of a clearly established constitutional violation. Wright v. South Arkansas Regional Health Center, Inc., 800 F.2d 199, 203 (8th Cir.1986); see Green v. Carl son, 826 F.2d 647, 651 (7th Cir.1987); Myers v. Morris, 810 F.2d 1437, 1459 (8th Cir.1987); Kraus v. County of Pierce, 793 F.2d 1105, 1108 (9th Cir.1986); Kennedy v. City of Cleveland, 797 F.2d 297, 298, 305-06 (6th Cir.1986); White, 797 F.2d at 814; Jasinski v. Adams, 781 F.2d 843, 846 (11th Cir.1986). Our review of this order must encompass the entire summary judgment record, i.e., the depositions, affidavits, and responses to interrogatories that we routinely canvass when the appeal is from a final order granting summary judgment. This approach will prove far fairer to public officials than “focusing only on plaintiffs’ generalized hyperbole” despite the presence of a pretrial record. Bonitz, 804 F.2d at 179 (Campbell, C.J., dissenting). It may upon occasion save plaintiffs the burden of undergoing a lengthy trial only to find that the appellate court never believed the case presented a triable issue in the first place. A motion for summary judgment is not a motion for judgment strictly on the pleadings. Id. It will seldom be difficult for a plaintiff to plead a violation of clearly established law; to limit the scope of appellate review to plaintiffs allegations is entirely at odds with the goals of qualified immunity set forth in Harlow and Mitchell. Without immunity, government officials face skewed incentives that may drive them toward inaction: the person aggrieved by official actions may be quite willing to sue, but the losses to society as a whole that come from official inaction may be more diffuse and thus less likely to result in a lawsuit. See generally P. Schuck, Suing Government: Citizen Remedies for Official Wrongs 60-77 (1983). Qualified immunity is an attempt to redress this imbalance of incentives, and it entitles a defendant to summary judgment unless there is a genuine issue as to whether the defendant in fact committed a violation of clearly established law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. III. Our review of the summary judgment record leads us to conclude that there does exist a genuine question as to whether defendants Dammon and Edwards violated clearly established Fourth Amendment law. Accordingly we affirm the district court’s denial of summary judgment as to these two defendants. The Turners alleged both Fourth Amendment and due process violations. The facts on the present record establish a triable issue on the Turners’ Fourth Amendment claim. The pattern of harassment alleged was a series of administrative searches purportedly conducted under Md.Ann.Code art. 2B § 190. The specific constitutional provision governing this type of activity is, of course, the Fourth Amendment, and it is to the law of search and seizure that we must turn in assessing the Turners’ claim. It is the Fourth Amendment that establishes the “process” that is due to the subjects of government searches; the specific doctrines of search and seizure, not the generalized concepts of due process, provide the relevant legal standard in this context. The summary judgment record unquestionably raises a genuine issue as to whether defendants Dammon and Edwards violated clearly established law in the way that they administered the series of bar checks in this case. It is undisputed on the record that Rosie’s Place was visited at least one hundred times. Officer Dammon has stated that he also conducted checks of other bars in the area, but he has produced no evidence to document any of these checks, and admits that he visited Rosie’s more frequently than any other bar. The only justification offered for this disproportionate pattern of searches is the unsubstantiated statement that a large number of police calls came from Rosie’s. Apart from the Female Sitters arrests, the record contains not a single police report documenting criminal complaints or activities, and no records of arrests. The district court noted that “no evidence of any statistics or reports has been submitted by defendants showing a higher incidence of crime at Rosie’s Place II than anywhere else in the county. In fact, defendant Dammon admitted that no criminal complaints had been filed and no liquor violations were found in any of the bar checks at Rosie’s Place. Defendant Dam-mon explained why he went as far as cutting open liquor boxes in the storeroom, despite having never found any liquor violation, by saying, ‘... you never know when you are going to find a violation.’ ” It is this utter absence of objective justification for the highly disproportionate number of searches at Rosie’s Place that raises constitutional concerns. The two officers offer no basis from which any reviewing authority can gauge the reasonableness of their actions. That, of course, is the very definition of official lawlessness and the very behavior that the Fourth Amendment, by its express terms, forbids. We recognize that the rules governing administrative searches are a peculiar species of Fourth Amendment law. Administrative search programs reflect the fact that important public interests may require searches conducted without traditional warrants or probable cause. The Supreme Court has thus recognized that the reasonableness of an administrative search must be subject to a flexible standard, “balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). It is not the lack of a warrant that gives rise to constitutional concerns here. War-rantless searches, such as those allowed by Md.Ann.Code art. 2B § 190, are permissible in the context of heavily regulated industries, of which liquor establishments such as Rosie’s are a prime example. See Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Harper, 617 F.2d 35, 38 (4th Cir.1980). Likewise, the absence of traditional probable cause would not invalidate the decision to conduct a particular search, for administrative searches can permissibly be conducted on the basis of a lesser justification. See Ca-mara, supra. It is Dammon and Edward’s execution of the Maryland bar check program, not the program itself, that may be constitutionally objectionable. There is no question that the Fourth Amendment prohibition of unreasonable searches and seizures applies to the performance of administrative searches of commercial property. See Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 2537, 69 L.Ed.2d 262 (1981); Colonnade Catering, 397 U.S. at 77, 90 S.Ct. at 777; Gallaher v. City of Huntington, 759 F.2d 1155 (4th Cir.1985). It is also beyond doubt that the fundamental function of this prohibition is to protect citizens from the “unbridled discretion” of government officials. See, e.g., Marshall v. Barlow’s, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1826, 56 L.Ed. 2d 305 (1978). Clearly at issue on the record is whether Dammon and Edwards exercised unbridled discretion in conducting, for no apparent reason, a grossly disproportionate number of searches at Rosie’s, thereby effecting the type of “unreasonable” intrusion that the Fourth Amendment forbids. It is part of the settled law of administrative searches that they may “not be directed at particular individuals.” S. Saltzburg, American Criminal Procedure 272 (2d ed. 1984). If it were otherwise, no enterprise would enjoy constitutional recourse from the constable’s whim. The Supreme Court has emphasized that administrative search programs must be carried out in accordance with “specific neutral criteria.” Marshall, 436 U.S. at 323, 98 S.Ct. at 1826. The Court in other contexts has contrasted permissible warrantless searches such as checkpoints that apply to all subjects equally with impermissible search programs that allow officers to single out targets for search without any justification. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (condemning random automobile stops). The Court has emphasized the importance of curtailing the “discretion of Government officials to determine what facilities to search and what violations to search for,” Dewey, 452 U.S. at 605, 101 S.Ct. at 2541, and that Fourth Amendment constraints on an administrative search program require “certainty and regularity” of application, New York v. Burger, — U.S.-, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987). Some of the above cases address the question whether a warrant is required rather than the standards to be used assuming a warrantless search is applicable. The import of the statements in these opinions is clear, however, and a prior holding in “identical circumstances” is not necessary for the law to have been clearly established. See Mitchell, 472 U.S. at 535 n. 12, 105 S.Ct. at 2820 n. 12. The basic standards governing administrative searches condemn the baseless isolation of a single establishment for grossly disproportionate intrusions. Where, as here, a valid administrative search program authorizes war-rantless inspection but provides no rules governing the procedure that inspectors must follow, “the Fourth Amendment and its various restrictive rules apply.” Colonnade Catering, 397 U.S. at 77, 90 S.Ct. at 777. The cases upholding warrantless administrative searches clearly establish that these rules require certainty, regularity, and neutrality in the conduct of the searches. Burger, 107 S.Ct. at 2648; Dewey, 452 U.S. at 605, 101 S.Ct. at 2541. The Fourth Amendment delimits the presence of public authority on private premises, for the simple reason that uncau-tioned authority is open to abuse. The danger of abuse is greater for establishments such as Rosie’s which, though licensed by law, may be the objects of public suspicion and obloquy. The rule governing administrative searches has been well stated by two leading commentators: administrative searches may permissibly be conducted either “upon a reasonable showing in the individual case of reasonable suspicion short of traditional probable cause, or upon a showing that the individual case arose by application of standardized procedures involving neutral criteria.” W. La-Fave & J. Israel, Criminal Procedure § 3.9 at 188 (1985). No reasonable officer could possibly have believed that the Fourth Amendment allows over one hundred searches of one particular bar with no objective basis. Nothing herein is intended to impair the inspection of establishments that sell alcoholic beverages. The burden on law enforcement officials in conforming their conduct to Fourth Amendment standards is not great in the area of traditionally regulated industries. Had the officers here established that the bars in the area were subject to random checks on a roughly equivalent basis, it could not be said that the checks violated “clearly established” law. The same would be true if the record established that the large and disproportionate number of searches at Rosie’s was objectively supported by numerous arrests, by reports of criminal activity there, or even by logs detailing the subject of complaints by patrons, passersby, or neighboring establishments to which the officers had responded. At this point, however, the record contains only Dammon’s unsubstantiated statements in support of an egregiously disproportionate number of searches. We hold that on this record Dammon and Edwards are not entitled to qualified immunity and that an issue of triable fact as to these defendants’ violation of settled Fourth Amendment principles appears to have been presented. Indeed, if no supplementary explanation of the defendants’ conduct is added to the record, the district court may wish to entertain a motion for partial summary judgment as to liability on the plaintiffs’ Fourth Amendment claim. It may later be determined that there is sufficient evidence to justify the actions alleged by the Turners and apparently acknowledged by Dammon and Edwards. That is not the case on the present record, however, and the trial court properly denied Dammon and Edwards’ summary judgment motions. IV. Roth, Currence, and Casper were far less involved in the allegedly unconstitutional searches, however, and the summary judgment record establishes their entitlement to qualified immunity. It is undisputed on the record that defendant Roth participated only in the execution of the search warrant at the Turner home on November 19, 1983. The trial court found that because the search was conducted pursuant to a valid warrant, the officers were entitled to immunity from any claim arising out of this search based upon the objective reasonableness of their conduct. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Because Roth is alleged to have participated only in this search, there is certainly no genuine issue as to whether he violated clearly established law. Similarly, defendant Currence participated only in the search of the Turner home and the Female Sitters arrests. The Female Sitters arrests were undisputedly made on probable cause and pursuant to a statute that was presumptively valid at the time. They cannot, therefore, be the basis of a valid § 1983 claim. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). Currence’s level of participation in the events involving the Turners does not raise a genuine issue as to whether he violated clearly established law. Finally, defendant Casper is alleged to have participated only in the Female Sitters arrests and in a single bar check on May 31, 1983. His affidavit acknowledges that he participated in “a number of bar checks.” This record does not reveal a genuine issue as to whether Casper violated clearly established law. Our holding that an issue of violation of clearly established law exists as to Dammon and Edwards, despite the Fourth Amendment deference due searches of liquor establishments, is largely based on the egregious facts of their specific cases. Neither the allegations nor the affidavits in the record suggests that Casper was involved in comparable conduct. The denial of summary judgment as to defendants Dammon and Edwards is affirmed. The denial of summary judgment as to defendants Roth, Currence, and Cas-per is reversed, and we remand to the district court for entry of judgment in their favor. AFFIRMED IN PART; REVERSED IN PART; and REMANDED. . The Turners’ suit originally included as defendants William Bell and James Goldsmith of the St. Mary’s County Sheriffs Department. Because they have been dismissed from the suit, we do not address any of the allegations directed specifically at them. . This view focuses on language in Mitchell which states that an “appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of plaintiffs version of the facts" and that “the appealable issue is a purely legal one: whether the facts alleged by the plaintiff (or in some cases the defendant) support a claim of violation of clearly established law.” 472 U.S. at 528 & n. 9, 105 S.Ct. at 2816 & n. 9. Although this part of the Mitchell opinion describes the precise issue presented in Mitchell — the defendant accepted the plaintiff’s allegations, and challenged solely the characterization of the law as “well established” — we do not believe that it establishes a limitation on all reviews of denials of qualified immunity. . The dissent would apply a due process analysis turning on the defendants’ alleged unconstitutional motive. We believe that the facts of this case make such an approach inappropriate. Where specific constitutional standards, here those of the Fourth Amendment, are applicable to alleged conduct, it is those standards by which a plaintiffs’ claim is properly judged. The Supreme Cotut has clearly endorsed this view in the context of qualified immunity: [T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right_ But if the test of "clearly established law” were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unlimited liability simply by alleging violation of extremely abstract rights. Anderson v. Creighton, — U.S.-, 107 S.Ct. 3034, 3039, 97 L.Ed. 523 (1987). This case concerns the propriety of an administrative search, subject to the objective standards of the Fourth Amendment, rather than the “extremely abstract rights” asserted here under the Due Process Clause. Plaintiffs are not entitled to assert a Fifth or Fourteenth Amendment due process right to “engage in business" should their Fourth Amendment claims fail. Such a right would be akin to that in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), and its progeny, which the Supreme Court has long since refused to recognize. The dissent suggests that our opinion leaves the district court without necessary guidance on the issue of “subjective good faith.” We have not discussed the defendants’ subjective motives, however, because they simply are not relevant to the proper analysis in this case either now or at a possible later trial. In this Fourth Amendment context, as in any other, "subjective good faith" simply will not be part of the qualified immunity inquiry. The relevant question, as stated by the Supreme Court in Anderson, is "the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.” Id. 107 S.Ct. at 3040. The dissent correctly points out that in some cases, motive or intent will be relevant despite the presence of a qualified immunity issue. This is so because intent, such as purposeful racial discrimination or class based animus, is in those cases an aspect, not of the qualified immunity inquiry, but of the cause of action itself. See, for example, the cases cited by the dissenting opinion at note 8, infra. This is not such a case. Fourth Amendment claims rise or fall on the objective reasonableness of the searches conducted, not on the underlying intent or motivation. See W. LaFave, Search and Seizure § 1.2(g) (Supp.1986). Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_const1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Charles PURCILLA and Timothy McLEAN, Appellants, v. William H. BANNAN, Warden, State Prison of Southern Michigan, Appellee. No. 13541. United States Court of Appeals Sixth Circuit. Nov. 3. 1958. Flach Douglas, Cincinnati, Ohio, for appellants. Paul Adams, Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Mich., for appellee. Before MARTIN and MILLER, Circuit Judges, and JONES, District Judge. PER CURIAM. This cause has been heard and considered on appeal by two convicts from the denial of a petition for writ of habeas corpus filed by them. Having duly considered the briefs and oral arguments and the record in the cause, conclusion has been reached that the dismissal of the petition for writ of habeas corpus by the district court was correct, for the reasons stated by United States District Judge Thornton in his carefully prepared and detailed opinion. The judgment of the district court is affirmed. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. 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. UNITED STATES of America, Plaintiff-Appellee, v. Gilbert L. DOZIER, Defendant-Appellant. No. 82-3419. United States Court of Appeals, Fifth Circuit. June 23, 1983. Rehearing and Rehearing En Banc Denied Aug. 11, 1983. Boren, Holthaus & Perez, James E. Boren, Baton Rouge, La., Thomas B. Rutter, Philadelphia, Pa., for defendant-appellant. Stanford O. Bardwell, Jr., U.S. Atty., Stan Lemelle, Asst. U.S. Atty., O.E. Jack Roberts, Baton Rouge, La., for plaintiff-appellee. Before GARZA, RANDALL and GAR-WOOD, Circuit Judges. GARZA, Circuit Judge: On January 30, 1980, Gilbert Dozier was charged, in a five count indictment, with violations of the Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act. On September 23, 1980, a guilty verdict was returned on counts one, two, three and five of the indictment. On count one Dozier was sentenced to five years imprisonment and fined $25,000. On count two he was given five years imprisonment to be served consecutively to the sentence imposed on count one. On count three the court suspended imposition of a sentence of imprisonment and placed Dozier on five years probation “to commence upon his release from prison.” And on count five the court suspended the imposition of a sentence. Execution of the entire sentence was suspended pending appeal, and Dozier remained free on bail. On April 8,1982, an opinion was rendered by this court affirming Dozier’s conviction. On May 27, 1982, the government filed a motion to revoke the appeal bond and to revoke the probation of the defendant, an arrest warrant was issued and executed, and Dozier was held without bond. On June 4, 1982, the mandate was issued by this court; and on June 5,1982, a stay order was issued by the United States Supreme Court. On June 8, a supplemental and amended motion to revoke probation was filed. On June 9, 1982, the Supreme Court entered an order vacating the June 5 stay. A probation revocation hearing was conducted from June 21 through June 24,1982, and on June 24, 1982, the district court revoked Dozier’s probation. The court imposed a prison term of eight years under count three of the original indictment to be served consecutively to the two other prison terms and specified that the defendant was to serve a minimum of eighteen months on count three before parole eligibility. On count five a suspended ten year term of imprisonment was imposed, and the defendant was placed on probation for a period of five years to commence upon the defendant’s release from prison. The motion to revoke probation charged Dozier with violations of 18 U.S.C. §§ 1341, 1342, 1502 and 1503. In brief the facts supporting the charges are as follows: Dozier solicited Huey P. Martin to influence, by any means necessary, members of the petit jury in Dozier’s trial to write and mail letters to the trial court claiming jury misconduct; Martin, in turn, solicited the help of George Davis in accomplishing this task; Davis and Martin reached a financial agreement with Dozier for carrying out this scheme in which Martin and Davis would equally share $50,000 a year for five years; Dozier supplied Martin and Davis with a list of jurors; one of the jurors was subsequently contacted; and the juror wrote the desired letter. Dozier argues that the district court erred in revoking the sentence of probation given for his conviction on count three of the indictment. He argues that the trial court does not have the power to revoke a defendant’s probation before the defendant has commenced service of the term of probation. We disagree. This court has held on several occasions that a trial court may revoke a term of probation before the defendant begins service of the term of probation. United States v. Cartwright, 696 F.2d 344, 347-349 (5th Cir.1983); United States v. Tucker, 524 F.2d 77, 78 (5th Cir.1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1462, 47 L.Ed.2d 733 (1976); United States v. Ross, 503 F.2d 940, 941 (5th Cir.1974). Dozier also contends the trial judge abused his discretion by denying the defendant’s request for recusation. The defendant points to four separate incidents which he claims- require recusal. First, Agent Phipps told the trial judge that Dozier had solicited the assistance of Martin to get jurors to write letters stating that there had been jury misconduct. According to Phipps, Judge Polozola advised him that Dozier’s case was still on appeal before the Fifth Circuit and instructed him to preclude contact with the trial jurors. Second, on April 21, 1982, Phipps contacted the trial judge and advised him that a confidential informant (Davis) was under “considerable pressure” and requested the judge’s permission to bring the investigation to a logical conclusion. The judge authorized Agent Phipps to continue the investigation and contact a juror. Third, Rev. Jimison of Baton Rouge had a meeting with the judge in connection with an unrelated matter and also discussed one of the juror’s remarks to him concerning possible jury misconduct. Fourth, the juror eventually solicited contacted the judge to see if it was permissible for her to talk with Agent Phipps. The judge told her she could, but did not have to, talk with Phipps. The statutory provisions impose a reasonable man standard for determining whether a judge should recuse himself. Parliament Insurance Company v. Hanson, 676 F.2d 1069, 1075 (5th Cir.1982). Applying this standard, we see no impropriety in the trial judge’s failure to recuse himself. Dozier was free on bond when the information complained of was related to the judge, and the information, at least to some extent, was relevant to the district court’s supervision of that bond. Furthermore, and most importantly, we can see no prejudice or bias which the trial judge developed as a result of this information. Next, Dozier contends that the government engaged in such outrageous conduct that the lower court erred in finding a violation of probation and in revoking probation. After thoroughly reviewing the record and the applicable law, we find this contention to be totally without merit. Finally, Dozier contends that the district court erred in finding he had committed the crimes of conspiracy and attempted burglary. All that is required for the revocation of probation is enough evidence to satisfy the district judge that the conduct of probationer has not met the conditions of probation. United States v. MacKenzie, 601 F.2d 221, 222 (5th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). Since Dozier’s solicitation of Martin to contact jurors serves as an adequate basis for the discretionary action of the district court, it is unnecessary for us to decide this claim of error advanced by the defendant. United States v. Brown, 656 F.2d 1204, 1207 (5th Cir.1981), cert. denied, 454 U.S. 1156, 102 S.Ct. 1029, 71 L.Ed.2d 313 (1982). Finding no reversible error, the revocation of probation is affirmed. AFFIRMED. . After being contacted by Martin, Davis contacted Agent Phipps of the F.B.I. Agent Phipps in turn contacted the trial judge. From this time forward, Davis kept Agent Phipps informed of Dozier and Martin’s activities. Reciprocally, Phipps kept the district court informed concerning the progress of the investigation. . At oral arguments a question arose concerning the status of the appeal of this case when the probation revocation hearing was held. The court asked the parties to file supplemental briefs on the question of whether, assuming the mandate of this court had been stayed by the United States Supreme Court, the district court had jurisdiction to revoke Dozier’s probation. The record reveals, however, the stay granted by the Supreme Court was vacated before the hearing. Since the district court reacquires jurisdiction of a case when the mandate is issued, United States v. Cook, 592 F.2d 877, 880 (5th Cir.), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979), the district court regained jurisdiction when the stay was vacated. The district court, therefore, had jurisdiction when the hearing was held. 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_counsel1	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 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 Richard Lee GILPIN, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. No. 13327. United States Court of Appeals Sixth Circuit. May -14, 1959. Richard Lee Gilpin, in pro. per. Russell E. Ake, U. S. Atty., Cleveland, Ohio, Richard M. Colasurd, Asst. U. S. Atty., Toledo, Ohio, for appellee. Before MARTIN, Chief Judge, SIMONS, Circuit Judge, and BOYD, District Judge. PER CURIAM. Appellant, who is confined in the Federal Correctional Institution at Milan, Michigan, has appealed from his conviction in the District Court for the Northern District of Ohio, Western Division. Prior to consideration of this appeal, appellant’s request, filed April 17, 1959, for the assignment of counsel to represent him in this proceeding, was overruled as having already been heard and properly denied in an opinion dated March 28, 1959, 6 Cir., 265 F.2d 203, by Judge Miller of this Court. There being no merit in the points raised by appellant in his brief, the judgment of the district court is affirmed. Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_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. FEDERAL COMMUNICATIONS COMMISSION v. WJR, THE GOODWILL STATION, INC. et al. No. 495. Argued April 22, 1949. Decided June 6, 1949. . Solicitor General Perlman argued the cause for petitioner. With him on the brief were Stanley M. Silver-berg, Benedict P. Cottone, Max Goldman, Richard A. Solomon and Paul Dobin. - Louis G. Caldwell argued the cause for respondents. With him on the brief for WJR, The Goodwill Station, Inc.,,were Donald C. Beelar and Percy H. Russell, Jr. Frank U. Fletcher(/was also of counsel for the Coastal 'Plains.-Broadcasting Co., Inc., respondent. Mr. Justice Rutledge deliveréd the opinion of the Court. Most broadly stated, the important question presented by this case is the extent to which due process of law, as guaranteed by the Fifth Amendment, Requires federal administrative tribunals to accord the right of oral argument to one claiming to be adversely affected by their action, more particularly upon questions of law. Lest this spacious form of statement bé taken as too sweeping and abstract to pose a justiciable issue, we think the specific context of fact and decisión out of which the question has arisen must be set forth. But before this is done we should say that, as we understand the Court of Appeals’, decision', it has ruled that Fifth Amendment procedural due process requires an opportunity for oral argument, to be given “on every question of law raised before a judicial or quasi-judicial tribunal, including questions raised by demurrer or as if on demurrer, except such questions of law as may be involved in interlocutory orders such as orders for the stay of proceedings pendente lite, for temporary injunctions and the like,” 174 F. 2d 226, 233, and on this basis has remanded this cause to the Federal Communications Commission for oral argument. Involved in the controversy are two radio stations and the Commission, which is the petitioner here. One of the stations is the respondent WJR. It is licensed by the Commission as a “Class I-A Station,” to broadcast day and night from‘Detroit, Michigan, on a frequency of 760 kilocycles and with a strength of 50 kilowatts. The other station is the intervenor, Coastal Plains (formerly Tarboro) Broadcasting Company. Prior to August 22, 1946, Tarboro filed written application with the Commission for a permit to construct a “Class II Station” to broadcast from Tarboro, North Carolina.'On ’that date the Commission granted the application. The permit specified that the new station was to broadcast during the day from Tarboro at a strength of one kilowatt on the frequency of 760 kilocycles, which previously had been used exclusively by WJR. The construction permit was granted without notice to WJR and without oral hearing or other participation by-it in the proceedings before the Commission. On'September 10 following, WJR filed with the Commission a written “Petition for reconsideration and hearing.” This'alleged that the proposed broadcasting range of the Coastal Plains station would cause “objectionable interference” with respondent’s broadcast signal. Interference was said to be anticipated principally in certain areas;, of Michigan where “the field intensity of WJR averagés 32 microvolts per meter or less during the daytime hours,” but where “WJR provides the best signal available”; limited interference “during the winter season” was also expected within “contours” of field intensity “much higher” than 32 microvolts; interference of unspecified extent was also thought likely in neighboring states, though as to such areas it was conceded that “a better signal is provided by other stations.” On the basis of these allegations WJR asked that the Commission hold a hearing on the Coastal Plains application to which WJR might be made a party or, in the. alternative, postpone final action on the Coastal Plains application until the conclusion of the then peh^ing.“Clear Channel” proceeding. In that proceeding, essentially legislative, in character, the Commission was considering the desirability of changing its rules so as to allow WJR and other stations to increase their broadcast strengths to 500 kilowatts. The basis for the alternative request was WJR’s fear that a grant of the Coastal Plains construction permit might prejudice a possible future WJR application for increased signal strength in the event the decision in the clear channel proceeding should so modify the Commission’s rules as to facilitate such an application. Coastal Plains filed an opposition to WJR’s petition for reconsideration, asserting among other grounds for denial' that WJR had not alleged that the proposed new opera*tion “would cause any interference within the normally protected service area of station. WJR” and had neither alleged nor proved “any interference within its normally protected contours.” The opposition was based on the theory that under the Commission’s regulations WJR’s license conferred no right, to protection against interference outside its normally protected contours as specified in the regulations, that the interference alleged was outside those contours, and hence WJR’s petition was legally insufficient on its face to state any basis for WJR to be made a party to or to be heard in the Coastal Plains proceeding. No response to the opposition was filed by WJR and some three months later, on December 17,1946, the Commission denied WJR’s application in a written opinion, rendered without prior oral argument. The opinion first disposed of the allegations of interference: “Station WJR is a Class I-A station. Under the Commission’s Rules and Standards, Class I-A stations are normally protected daytime to the 100 microvolt-per-meter contour. The area sought by petitioner to be protected is, according to the engineering affidavit accompanying the petition, served by Station WJR during the daytime with a signal intensity of 32 microvolts-per-meter or less, and is therefore outside the normally protected contour.” As the Court of Appeals later treated this ruling, it was the equivalent of holding as a matter of law, in judicial parlance essentially as though raised upon demurrer, that WJR’s petition did not state facts sufficient to raise any legal issue concerning (indirect) modification of lyJR’s license or fights under the license. The Commission also denied WJR’s alternate request to stay the Coastal Plains application, concluding that, postponement of the newly authorized service, out of deference to any possible “future assignment of facilities” to WJR “would not serve the public interest.” WJR then appealed to the Court of Appeals. The. court agreed that the Commission had not abused its discretion in refusing to stay the Coastal Plains permit until completion of the clear channel proceeding. It held, however, that WJR’s claim of objectionable interference with its broadcast signal presented a question of law and, by a closely divided vote, in the broad language quoted ■;above, that, concerning the merits of that question, the Fifth Amendment assured to WJR the right of oral argument before the Commission. Accordingly, it refused to consider whether the Commission was right in its legal conclusion that areas of signal intensity lower than 100 microvolts per meter were not within the “normally protected contour” of a Class I-A station, reversed the Commission’s denial of WJR’s petition, and remanded the case for oral argument before the Commission. 174 F. 2d 226. To consider the questions of importance to the administrative process thus determined, we issued our writ of certiorari./ 336 U. S. 917. At the outset we note our complete agreement with the Court of Appeals that the Commission was under no duty1" to WJR to postpone final action on the Coastal Plains permit until it had disposed of the clear channel proceeding. As the court pointed out, WJR had no vested right in the “supposititious eventualities” that the Commission at some indeterminate time might modify its rules governing clear channel stations. Furthermore, the judicial regulation of an administrative docket sought by WJR “would require [the Court of Appeals] to direct the order in which the Commission shall consider its cases.” And this, as the court said, it “cannot do.” 174 F. 2d at 231. “Only Congress could confer such a priority.” Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 145. Obviously the most important question is the Court of Appeals’ ruling that Fifth Amendment due process required the Commission to afford respondent an opportunity for oral argument upon its petition for reconsideration of Coastal' Plains’ application; together with its grounding of that ruling in the even broader one that such an opportunity is an inherent element of procedural due process in all judicial or quasi-judicial, i. e., administrative, determinations ■ of questions of law, outside of such questions as may arise upon interlocutory matters involving stays pendente lite, temporary injunctions and the like. That the scope of its decision might not be.misunderstood, the court expressly stated: “A ruling upon a demurrer is obviously not interlocutory for if the demurrer is sustained the pleader’s cause (or defense) is dismissed upon the merits....” Moreover; except as to the indicated interlocutory matters, the right of oral argument on questions of law- (“as well as-... those of fact” when raised) was said to be “not conditional upon the ex parte view of the tribunal as to whether there is a substantial question as to the sufficiency of the allegations of a complainant.” 174 F. 2d at 240. Accordingly, although it was urged both by the Commission and by WJR to consider and determine thej “threshold” question of law upon. its merits, namely, whether the Commission’s decision in denying WJR’s petition was wrong, the court refused to consider or decide that question. In its view the question of the Commission’s duty to accord a hearing, “i. e., to hear argument before deciding whether the allegations of WJR’s petition were sufficient” in law, was “a procedural question quite separate from the question on the merits whether or not the allegations of the petition, assuming their truth, were sufficient.” 174 F. 2d at 240. The statutory scheme of the Communications Act, the court thought, “contemplates, before review in this court, proper éxercise of the Commission’s primary jurisdiction, i. e., valid first instance hearings' properly conducted from the procedural — due process — standpoint.” Ibid. Accordingly, the majority felt that the court, “must therefore remand the case with directions to the Commission to allow a hearing to WJR. Then if after hearing the Commission decides that the allegations were insufficient and dismisses the petition... an appeal to this court will bring properly before us the question of the correctness of the Commission’s decision on the merits....” Ibid. I. Taken at its literal and explicit import, the Court’s broad constitutional ruling cannot be sustained. So taken, it would require oral argument upon every question of law, apart from the excluded interlocutory matters, arising in administrative proceedings of every sort. This would be regardless of whether the legal question were substantial or insubstantial; of the substantive nature of the asserted right or interest involved; of whether Congress had provided a procedure, relating to the particular interest, requiring oral argument or allowing it to be dispensed with; and regardless of the fact that full opportunity for judicial review may be available. We do not stop to consider the.effects of such a ruling, if accepted, upon the work of the vast and varied administrative as well as judicial tribunals of the federal system and the equally numerous and diversified interests affected by their functioning; or indeed upon the many and different types of administrative and judicial procedures which Congress has provided for dealing adjudicatively with such interests. It is enough to say that due process of law, as conceived by the Fifth Amendment, has never been cast in so rigid and all-inclusive confinement. On the contrary, due process of law has never been a term of fixed and invariable content. This is as true with reference to oral argument as with respect to other elements of procedural due process. For this Court has held in some situations that such argument is essential to a fair hearing, Londoner v. Denver, 210 U. S. 373, in others that argument submitted in writing is sufficient. Morgan v. United States, 298 U. S. 468, 481. See also Johnson & Wimsatt v. Hazen, 69 App. D. C. 151; Mitchell v. Reichelderfer, 61 App. D. C. 50. . The decisions cited are sufficient to show that, the broad generalization made by the Court of Appeals is not the law. Rather it is in conflict with this Court’s rulings, in effect, that the right of oral argument.as a matter of procedural due process varies from case to case in accordance with differing circumstances, as do other procedural regulations. Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised. Equally certainly it has left wide discretion to Congress in creating the procedures to be followed in both administrative and judicial proceedings, as well as in their conjunction. Without in any sense discounting the value of oral argument wherever it may be appropriate or, by virtue of the particular circumstances, constitutionally required, we cannot accept the broad formula upon which the Court of Appeals rested its ruling. To do so would do violence not only to our own former decisions but also, we think, to the constitutional power of Congress to devise differing administrative and legal procedures appropriate for the disposition of issues affecting interests widely varying in kind. It follows also that we should not undertaké in this case to generalize more broadly than the particular circumstances require upon when and under what circumstances procedural due process may require oral argument. That is not a matter, under our decisions, for broadside generalization and indiscriminate application. It is rather one for case-to-case determination, through which alone account may be taken of differences in the particular interests affected, circumstances involved, and procedures prescribed by Congress for dealing with them. Only thus may the judgment of Congress, expressed pursuant to its power under the Constitution to devise both judicial and administrative procedures, be taken into account. Any other approach would be; in these respects, highly abstract, indeed largely in a vacuum. II. Descending to the concrete setting of this case in the provisions of the Communications Act, we are unable to conclude that the procedure Congress has provided for determination of the questions respondent raises affords any semblance of due process deficiency. The statute itself provides in terms for oral argument before the Commission in a single situation only, namely, in proceedings heard initially before an examiner under §409 (a). That provision however has no pertinence to this case, since it tvas not heard or assigned for hearing in the first instance before an examiner and respondent’s claimed right of participation arises under § 312 (b). 47 U. S. C. § 312 (b). That section authorizes the Commission to modify station licenses “if in the judgment of the Commission such action will, promote the public interest, convenience, and necessity,” but provides “That no such order of modification shall become final until the holder of such outstanding license... shall have been notified in writing of the proposed action and the grounds or reasons therefor and shall have been given reasonable opportunity to show cause why such an order of modification should not issue.” As bearing on the meaning of § 312 (b), account must be taken also of two other factors. One is § 4 (j) of the Act [47 U. S. C.. § 154 (j)], which provides: “The Commission may. conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends óf justice.... Any party may appear before the Commission and be heard in person or by attorney....” The other factor consists in this Court’s decision in Federal Communications Commission v. National Broadcasting Co., 319 U. S. 239, the so-called KOA case. That case held that the granting of. a license to broadcast on a frequency and at a strength which would interfere with.the broadcast signal of a prior licensee within the protection of the latter’s license as afforded by the Commission’s existing rules constitutes an indirect modification of the prior outstanding license. From this it was held to follow that § 312 (b) gave the prior licensee the right to be made a party to the proceeding and hence to “have notice in writing of the proposed action and the grounds therefor and... a reasonable opportunity to show cause why an order of modification should not issue.” 319 U. S. at 245-246. Then followed the Court’s conclusion that by virtue of KOA’s right to'be a party, it had also the right under § 402 (b) (2), as a “person aggrieved or whose interests are adversely affected,” to appeal to the Court of Appeals from the Commission’s denial of its petition, to intervene and participate as a party in the proceedings before it. It is in this context of statutory provisions and judicial decision that, WJR’s claim of right to participate in the Commission’s proceedings, including the right óf oral argument, and. of denial of due process through the denial of its petition for reconsideration arises and must be considered. WJR’s petition presents the question whether upon its face it states facts sufficient to show (indirect) modification of its license by the granting of Coastal Plains’ application. This in turn depends on whether allegations not asserting interference within the 100 microvoltper-meter contour or, as the Commission held, allegations asserting interference only “outside the normally protected contour” of WJR’s license, set forth any legally sufficient basis for a claim of right to be made a party and participate in the proceedings. And, again, according to respondent, the answer to.that question turns on whether the Commission’s Standards of Good Engineering Practice Concerning Standard Broadcast Stations constitute a part of and a limitation upon WJR’s license. Respondent insists that those Standards, as a matter of law, do not limit its license or measure the protection it affords against “objectionable interference”; it necessarily argues in addition that the degree -of interference its petition alleges brings about an-(indirect) modification of its license (conversely stated, that^the license protected it against the alleged degree of interference) and hence, as in the KOA case, the proposed grant of a new license entitles it under § 312 (b) to be made a party to the Coastal Plains proceeding and to participate in it as § 312 (b) provides. This is the claim which the Court of Appeals purported expressly to refuse to consider or decide, prior to oral argument upon it before the Commission. But two things may be noted. One is that, contrary to the situation here, in the KOA case the Commission’s proposed grant of a new license to Station WHDH concededly created interference against which the existing rules of the Commission protected the prior license of KOA. In the second place, the majority’s disclaimer here of decision upon the merits seems hardly consistent with its opinion’s flat ruling, as we understand it, that WJR’s allegations qualified it as a party to the proceeding and not, as the dissenting judges thought, merely as a stranger seeking to come in as an intervenor. For that question here, viz., whether WJR’s allegations entitle it to standing as a party, is but another way of phrasing the issue whether its petition states a legally sufficient claim of (indirect) modification, since under § 312 (b) only a prior licensee who States such a claim is entitled to be made a party and to participate in the proceedings. To decide that one has the status of a party is therefore to decide the question of modification vel non. In view of the court’s mandate, however, we think we must accept its disclaimer. But we also think that, in the light of the disclaimer, its ruling, if it was such, that WJR is entitled to be made a party must be rejected and that question must be regarded as inherently involved in, indeed as identical with, the undetermined issue of modification vel non, if. any effect is to be given to the provisions of § 312 (b). We think the limitations of that section must be given effect. Indeed it is our view that the Act’s procedural scheme and its application in this case have not deprived the respondent of any procedural right guaranteed by the due-process requirement of the Fifth Amendment. That is true notwithstanding the Commission’s failure to afford respondent an opportunity for oral argument upon its allegations in this case. Congress, we think, has committed to the Commission’s discretion, by the terms of § 312 (b) and § 4 (j) of - the Communications Act, the questions whether and under what circumstances it will allow or require oral argument, except where the Act itself expressly requires it. As we have noted, Congress has required oral argument expressly in proceedings heard initially before an examiner under § 409 (a). But no such requirement was made by § 312 (b). While that section requires notice and statement of grounds for any proposed order of modification before such order “shall become final,” it does not specify that further proceedings shall include the right to oral argument; it requires only that the holder of the outstanding license to be modified “shall have been given reasonable opportunity to show cause why such an order of modification should not issue” before the order becomes final. In view of the contrast between this language and that of § 409 (a), it is hardly to be taken that Congress intended the “reasonable opportunity to show cause” always to. include opportunity for oral argument. Indeed, in the absence of any such explicit requirement as that of § 409 (a), the terms of § 312 (b) must be read in the light of the Act’s general procedural authorization in § 4 (j), which empowers the Commission to “conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” In this wording Congress was mindful not only of the ends of justice but also of the proper dispatch of the Commission’s business, a matter not unrelated to achieving the ends of justice, and left largely to its judgment the determination of the manner of conducting its business which would most fairly and reasonably accommodate those ends. Moreover it was dealing with substantive interests involving the use, pursuant To federal license, of channels of radio communication “but not the ownership thereof,” § 301, as to which moreover the Act expressly provides that “no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license.” Ibid. In this connection it cannot be recalled too often that “ ‘public convenience, interest, or necessity’ was the touchstone for the exercise of the Commission’s authority” in matters relating to construction permits and licensing, and that this criterion “serves as a supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy.” Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134, 137-188. “Necessarily, therefore, the subordinate questions of procedure in ascertaining the public interest, when the Commission’s licensing authority is. invoked — the scope of the inquiry, whether applications should be heard contemporaneously or successively, whether parties should be allowed to intervene in one another’s proceedings, and similar questions — were explicitly and by implication left to the Commission’s own devising, so long, of course, as it observes the basic requirements designed for the protection of private as well as public interest.” Id. at 138. We need not go again over the ground which was covered by this decision and others. Suffice it to say that the Commission has not seen fit to provide for oral argument in all such cases as this arising under § 312 (b); nor is there any basis in the section or the Act for believing-that Congress intended to require it to do- so. “Reasonable opportunity to show cause,” as used in § 3Í2 (b), comprehends, in the light of § 4 (j) and this Court’s prior decisions, that the Commission'shall have broad discretion in determining whether and when oral argument shall be required or permitted, as it does with respect to other procedural mátters. Respondent does not contend that it was denied any opportunity to present for the Commission’s consideration any matter of fact or law in connection with its application or that the Commission has not given all matters submitted by it due and full consideration. We cannot say, in view of the statute and of the subject matter involved, that the Commission abused its discretion in hearing respondent’s application on the written submission. Accordingly we think it was error for the court to decline to decide the merits of the question whether respondent’s application stated a legally sufficient case of (indirect) modification of its license within the terms of § 312 (b) as well as to decide, without determining that question, that respondent was entitled to be made a party to and participate as such in the Coastal Plains proceeding. As we have said, in the situation here presented, the two forms of statement pose the same question in substance, together with the further question, under the KOA decision, whether respondent has standing to appeal as a party aggrieved. The statutory sequence identifies- (1) a legally sufficient claim of modification with (2) right to'standing as a party and (3) right to appeal. This threefold issue presents a question of law respondent is entitled to have determined. The dissenting judges in the Court of Appeals considered the question insubstantial, because they thought, contrary to respondent’s position, that the Commission’s Standards of Good Engineering Practice applied as a limitation upon respondent’s license and therefore excluded it from protection against interference such as respondent alleged, i. e., outside the contours prescribed by the Standards. That question, being one of law, might now be decided here. But since the statute, if it affords respondent a right of appeal, provides that it shall be to the Court of Appeals, and since that court has not decided the basic issue on the merits, we think the cause should be remanded to the Court of Appeals for decision of that question, uncomplicated by questions of constitutionality relating to the Commission’s procedure. Accordingly the court’s decision is reversed apd the cause is remanded to it for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice Murpht took no part in the consideration or decision of this case. Federal Communications Commission Rules Governing Standard Broadcast Stations § 3.22 (a): “A 'Class I Station’ is a dominant station operating on a clear channel and designed to render primary and secondary service over, an extended area and at relatively long distances. Its primary service area is free from objectionable interference from other stations on the same and adjacent channels, and its secondary service area free from interference, except from stations on the adjacent channel, and from stations on the same channel, in accordance. With the channel designation in Sec. 3.25 or in accordance with,the ’‘Engineering Standards of Allocation’. The operating power shall" :be not less than 10 kw nor more than 50 kw (also see Sec. 3.25"(a).for’further power limitation).” 4 Fed. Reg. 2715. Federal Communications Commission Rules Governing Standard Broadcast Stations-§ 3.22 (b): “A ‘Class II Station’ is a secondary statiijn which. operates on a clear channel (see Sec. 3.25) and is designed to render service over a primary service area which is limited by and. subject to such interference as may be received from Class -T.stations. A station of this class shall operate with power not dess than 0.25 kilowatts nor more than 50 kilowatts. Whenever necessary a Class II station shall use a directional antenna or other means to avoid interference with Class I stations and with other Class II stations, in accordance with the ‘Engineering Standards of Allocation.’ ’’ 4 Fed. Reg. 2715. For the meaning of the term “field intensity,” and for the relation óf a broadcast signal’s “field intensity” to the legal concept of a licensed radio station’s “normally protected contour,” see note 5.. Federal Communications Commission Rules Governing Standard Broadcast Stations § 3.21 (a): “A ‘clear channel’ is one-on which the, dominant station or stations render service over wide areas and which are cleared of objectionable interference, within their primary service areas and over all or a substantial portion of their secondary service areas.” 4 Fed. Reg. 2715. The dissenting opinion in the- Court of Appeals decision here under review offers a succinct exposition of these technical terms: "This concept of normal protection in the daytime is clear. The circumference of -the. protected area is a contour line, which is fixed by measurement of the strength of the radio waves from the par-. ticúlar station. That strength, or intensity, is measured in terms of microvolts (millionths of a volt) or millivolts (thousandths of a volt) per meter, abbreviated as uv/m and mv/m respectively. The wave which is measured is the groundwave, which follows the surface of the earth and extends greater or less distances depending upon the nature of the earth, its topography, and such obstacles as noise and steel structures. Generally speaking, the greater the distance from the station, the less the strength of the station signal. The ‘100 uv/m ground wave contour’ named in the Commission’s Standards, is the imaginary line which connects all points at which the ground wave of the station is of 100 microvolts per meter strength.” 174 F. 2d 226,244. The “Commission’s Standards” to which the opinion refers are the Standards of Good Engineering Practice Concerning Broadcast Stations. Under the subheading “Engineering Standards of Allocation,” paragraph (2) (a) provides as follows: “The Class I stations in Group 1 are those assigned to the channels allocated by Section 3.25, paragraph (a) [including, inter alia, the 760 kilocycle frequency assigned to WJR, 4 Fed. Reg. 2716], on which duplicate nighttime operation is not permitted, that is, no other station is.permitted to operate on a channel with a Class I station of this group within the limits of the United' States- (the Class II stations assigned the ■ channels operate limited time or daytime only) and during daytime the Class I station is protected to the 100 uv/m ground wave contour-.” 4 Fed. Reg. 2862-.- The case was first argued before three justices; Chief Justice Groner and Justices Clark and Prettyman. By direction of the court it was reargued before Justices Stephens, Edgerton, Clark, •Wilbur K. Miller and Prettyman. The decision was rendered pursiiant to an opinion of Justice Stephens, in which Justices Clark and Miller concurred.^ Justice Prettyman filed a dissenting opinion in which Justice Edgerton joined. The statement, taken in its context and the. pervading sense of the opinion, related not merely to judicial rulings technically “raised by demurrer” but also to judicial and administrative rulings “as if on demurrer,” i. e., as expressly stated later in the opinion, to rulings “raised by demurrer or motion to dismiss or, in an administrative proceeding, by some less formally named instrument of'like purpose,, or by the tribunal’s sua sponte treatment of a petition as if under demurrer....” 174 F. 2d at 236. Both from the wording of the immediate reference, quoted above, and from other language-in context, it is clear that the court’s reference to “the statutory scheme set up in the Communications Act” was not designed as a ruling that the statutory scheme itself, considered wholly as such and apart from any requirement of due process, affords the right of’ oral argument upon all questions of law, other than the interlocutory exceptions, before the Commission. Rather, the reference was intended to construe the Act as incorporating the court’s reiterated conception of due-process "requirements in this respect, in effect as a construction required by the Fifth Amendment. It is clear also that in this ruling the court identified “hearing” with “oral argument” insofar as determination of questions of law are concerned. We are thus confronted, so far as the court’s decision went, with no question purely of statutory construction but solely, at bottom, with one of constitutional import and effect. “The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights.” Labor Board v. Mackay Co., 304 U. S. 333, 351. “The requirements imposed by that guaranty [Fifth Amendment due process] are not technical, nor is any particular form of procedure necessary.” Inland Empire Council v. Milis, 325 U. S. 697, 710. See also Bowles v. Willingham, 321 U. S. 503, 519-521; Opp Cotton Mills v. Administrator, 312 U. S. 126, 152-153; Buttfield v. Stranahan, 192 U. S. 470, 496-497; Anniston Mfg. Co. v. Davis, 301 U. S. 337, 342, 343; United States v. Ju Toy, 198 U. S. 253, 263; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 235; Phillips v. Commissioner, 283 U. S. 589, 596-597. For example, what may be appropriate or constitutionally required by way of procedure, including opportunity for oral argument, in protection of an alien’s claims of right to enter the country, cf. Johnson v. Shaughnessy, 336 U. S. 806, may be very different from what is required to determine an alleged citizen’s right of entry or reentry, cf. Ng Fung Ho v. White, 259 U. S. 276, 282; Carmichael v. Delaney, 170 F. 2d 239, 243-244; a claimed right of naturalization, Tutun v. United States, 270 U. S. 568, 576-578; a claim1 of just compensation for land condemned, cf. Roberts v. New York City, 295 U. S. 264, 277-278; or the right to defend against an indictment for crime. Act of June 19, 1934, c. 652, 48 Stat. 1064, 1081, 47 U. S. C. § 301 ff. The section, reads in part: “In all cases heard by an examiner the Commission shall hear oral arguments....” 47 U. S. C. §409 (a). The Standards, 4 Fed. Reg. 2862, expressly state that “during daytime the Class I station is protected to the 100 uv/m ground wave contour.” § 1 (2) (a). The Commission’s Standards of Good Engineering Practice Concerning Standard Broadcast Stations' were adopted in 1939 after formal and informal hearings. Fifth Annual Report of the Federal Communications Commission (1940) 37. In other words, the interference alleged was within the conceded “normal contours” of KOA’s protection, not without them. There was therefore no question such as is presented here whether the existing station’s license protected it against the interference alleged. The KOA decision therefore cannot be taken as ruling that one asserting interference outside the scope' of its license protection, afforded by the Commission’s rules and regulations, is entitled to be made a party and Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_caseorigin	077	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. AMERICAN TRUCKING ASSOCIATIONS, INC., et al. v. FRISCO TRANSPORTATION CO. No. 15. Argued October 13, 1958. Decided December 15, 1958 Peter T. Beardsley argued the causes for appellants in Nos. 15 and 16. With him on a brief for appellants in No. 15 were Gregory M. Rebman and Wentworth E. Griffin. Carroll J. Donohue, Clarence M. Mulholland, James L. Highsaw, Jr. and Edward J. Hickey, Jr. filed a brief for the Railway Labor Executives’ Association et al., appellants in No. 16. Robert W. Ginnane argued the cause for the Interstate Commerce Commission. With him on the brief was ■ Charlie H. Johns, Jr. Ernest D. Grinnell, Jr. argued the causes for appellee. With him on the brief were James L. Homire, John E. McCullough, Alvin J. Baumann and Bernard G. Ostmann. Solicitor General Rankin filed a memorandum for the United States. Together with No. 16, Railway Labor Executives’ Association et al. v. Frisco Transportation Co., and No. 19, Interstate Commerce Commission v. Frisco Transportation Co., also on appeals from the same Court. Mr. Chief Justice Warren delivered the opinion of the Court. The issue here is whether the Interstate Commerce Commission has the power to modify certificates of public convenience and necessity containing inadvertent errors, and, if so, whether, in the circumstances of these cases, the Commission could modify certificates which had inadvertently authorized the performance of unrestricted motor carrier services by a wholly owned subsidiary of a railroad. Appellee, a wholly owned subsidiary of the St. Louis-San Francisco Railway Company, is a common carrier by motor vehicle engaged primarily in the transportation of property in interstate and intrastate commerce. The greater part of appellee’s motor carrier system was acquired in 1938 and 1939 by the purchase of existing independent motor carriers. These purchases were made pursuant to the predecessor of § 5 (2) (b) of the Interstate Commerce Act, 49 U. S. C. § 5 (2)(b), which permits the acquisition by a rail carrier of the rights and properties of a motor carrier if the Interstate Commerce Commission finds that the acquisition “will be consistent with the public interest and will enable such [rail] carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.” In 1938, appellee began seeking permission to operate as a motor carrier over substantial mileage in seven States including routes in issue here. On some of the routes eventually acquired by appellee, the Commission authorized it to carry on unrestricted operations. On others, the Commission imposed restrictions limiting service to points within ten miles of the rail stations of appellee’s parent corporation or to transportation of shipments from, to, or through certain cities. In addition, on some routes the Commission imposed additional restrictions to assure that appellee’s service would be “auxiliary or supplementary” to the services performed by its corporate parent. This case concerns four of appellee’s routes aggregating some 284 miles. Prior to appellee’s purchase, each of the routes was serviced by an independent motor carrier which engaged in unrestricted motor carrier operations. During 1938 and 1939, appellee made application to the Commission for permission to purchase the properties and operating rights of these independent carriers. Finance hearings were held before a Commission examiner to determine whether the acquisitions met the applicable statutory standards. Although appellee sought to continue the acquired carriers’ unrestricted operations, it represented to the Commission in each of its applications that acquisition of the carriers would enable it to establish coordinated truck service with the train servicé of its parent railroad along these routes. A number of motor carriers opposed appellee’s applications, but the hearing examiner recommended approval of each, subject to various conditions. Among these was the recommendation that the authority granted be subject “to such further limitations, restrictions, or modifications as the Commission may hereafter find necessary to impose, in order to insure that the service shall be auxiliary or supplementary to the train service of the [parent] railroad, and shall not unduly restrain competition.” The protestant motor carriers filed exceptions to the hearing examiner’s report on one of the purchases and all went to Division 5 of the Commission for action. It reviewed the reports and adopted the examiner’s recommendations including the above-quoted condition. Although appellee had asked for authority to operate unrestricted service, it took no exceptions to the Division reports and did not ask for review by the full Commission. Rather, it notified the Commission that it would consummate the approved purchases subject to the terms prescribed, and, within thirty days of the reports, it did consummate the transactions and commence operations. Thereafter, in 1939, compliance orders issued to appellee in connection with the four routes in question. These informed appellee that certificates of convenience and necessity authorizing it to engage in interstate and foreign commerce as a common carrier according to specifications set forth in the orders would be issued as soon as appellee complied with applicable statutory requirements, including the filing of rate publications and evidence of security for the protection of the public. The specifications in the compliance orders did not include the condition adopted by Division 5 reserving the right to the Commission to take steps to insure that appellee’s service would be “auxiliary or supplementary” to its parent’s rail services. In 1941, prior to the issuance of certificates covering the four routes, a complaint was filed by various competing motor carriers which charged that appellee was performing unauthorized motor carrier service which was independent of its parent’s rail services. During the course of this proceeding, a number of certificates of convenience and necessity issued to appellee. Those concerning the four routes in question contained no reservations of authority similar to the ones stated in the finance hearing orders issued by Division 5. On August 1, 1944, Division 5 entered findings in that proceeding stating that appellee was performing unauthorized direct motor carrier service which it had not been authorized to perform by the original acquisition orders. The Division further stated that appellee’s original authorization had been limited to services “auxiliary or supplementary” to the rail service of its parent. Because appellee had acquired unconditional certificates, however, the Division did not enter an order, but indicated that the acquisition proceedings would be reopened to determine what, if any, conditions should be imposed in appellee’s certificates. Subsequently, the Commission disapproved the Division’s findings that appellee had engaged in operations unauthorized by its certificates, but it stated that the conditions, if any, which should be imposed would be considered in the reopened proceedings. The reopened proceedings commenced on motion of the Division in 1945. All parties to the proceeding were served with an examiner’s proposed report based on the records of the Commission. This report stated that the Commission had approved appellee’s acquisitions subject to the right to impose conditions to assure that appellee’s operations would be auxiliary or supplementary to the rail service of its parent, but that such a reservation inadvertently had been omitted from the certificates issued to appellee. The report proposed specific conditions to effectuate the original purpose of the Commission — i. e., to assure that appellee’s services were solely “auxiliary or supplementary.” Appellee filed exceptions to the proposed report and requested hearings. Thereupon, the Division reopened the proceedings for further hearings which were held in 1946, after which the matter was referred to examiners for further appropriate proceedings. In an exhaustive report, the examiners discussed the history of appellee’s operations and the circumstances surrounding the issuance of the unconditioned certificates. They concluded that the certificates could not authorize operations broader than those approved by the Commission in the finance proceedings and that the certificates inadvertently had omitted relevant restrictions. The Division, in its report, reviewed the Commission’s administrative procedures and practices and pointed out how the error probably had occurred. It showed that certificates are prepared by a staff section of the Commission which, after a prescribed lapse of time from the adoption of reports or orders by the Commission authorizing the issuance of certificates, inserts on mimeographed forms containing stock paragraphs the authority described in the findings of the report. It further stated that, under the Commission rules, this staff section has no discretion to alter anything contained in the reports and is charged with the sole responsibility of transposing the Commission findings into certificate form. Different action, if any, which might be desired can only be taken by the Commission or a Division through a formal supplemental report. The certificates are reviewed by a supervisor, who is also without discretionary authority to make changes, and are then issued. The Division reasoned that as no supplemental report had issued between the conclusion of the finance hearings and the issuance of the certificates, the staff section of certificates obviously had made an inadvertent error in transposing the relevant findings. The full Commission, after oral argument, stressed another aspect of the matter in affirming the action of the Division. In its view, the findings of the finance proceedings which specifically authorized appellee’s purchases, subject to the stated limitations, could not be changed to eliminate such limitations without a formal proceeding at which opponents of the unlimited application could be heard. Each opinion within the Commission thus found that the omission from the certificates of the stated reservations had been due to clerical inadvertence which should be corrected. These corrections were ordered, and in addition specified conditions were imposed consistent with the reservations. Appellee, dissatisfied with the Commission’s final order, commenced an action before a specially convened three-judge District Court to have the order set aside. 28 U. S. C. § 2321 et seq. Appellee argued, and a majority of the court concluded, over a dissent of one of its members, that under United States v. Watson Bros. Transportation Co., 350 U. S. 927, the Commission was without power to order modification of the unconditional certificates issued to appellee. Further, the court held that the record lacked substantial evidence to support the Commission finding that the relevant restrictions were omitted from the certificates due to inadvertency. 153 F. Supp. 572. We disagree with both of these conclusions. I. It is well settled that the Commission has the power to reserve in certificates issued to a rail-affiliated motor carrier the right to impose specific conditions to assure that the carrier’s operations will be “auxiliary or supplementary” to the rail services of its affiliate. United States v. Rock Island Motor Transit Co., 340 U. S. 419. In that case a certificate, which contained a reservation similar to the one at question here, was issued in 1941. The reason for the reservation is obvious. Congress, in § 5 (2) (b) of the Interstate Commerce Act, 49 U. S. C. § 5 (2)(b), has limited the acquisition of motor carrier franchises by rail carriers or their affiliates to situations where the acquisition will enable the rail carrier to use service by motor carrier to public advantage. The Commission has long interpreted this mandate to confine such acquisitions to “operations which are auxiliary or supplementary to train service/’ at least in the absence of special circumstances which might justify less restricted operations. American Trucking Assns. v. United States, 355 U. S. 141, 148, n. 8. To accomplish this congressional purpose, the Commission can either state in the certificate the conditions necessary to provide the limitation or reserve the right to impose conditions should the necessity arise. United States v.Rock Island Motor Transit Co., supra. Here, as the record shows, appellee sought the right to carry on unrestricted operations over all the routes which it was acquiring. In some instances, the Commission approved unconditioned operations for reasons which do not appear in the record. In others, however, including the four routes here at issue, approval of only conditional service was granted. Such approval was consistent with appellee’s representations that acquisition of the routes would enable it to give service which supplemented the operations of its rail-carrier parent. In fact, the limited approval did not appear inconsistent with appellee’s plans, for it took no appeal from the Division report adopting the order of the Commission examiner which clearly stated that the Commission reserved the right to impose future conditions. And appellee consummated the proposed purchases within thirty days of the Division report. Undoubtedly, therefore, at the time of the finance proceedings, the Commission authorized limited operations on the routes in question, to which appellee acceded. Between two and four years later, the Commission issued certificates to appellee which did not contain the reservation. The question arises, therefore, whether the omission of the restrictions from the certificates was due to a conscious policy choice on the part of the Commission or, as found by it, to error in the administrative process of fashioning the certificates. Certainly a conclusion must be based on one or the other of these alternatives because, as is obvious from the findings of Division 5 as well as the full Commission, the staff section of the Commission which prepared the certificates could not exercise discretion in changing the findings, orders and authorizations contained in the Commission reports. The majority below concluded that the omissions resulted from a policy change, and that the subsequent reopening of the proceedings and conditioning of the certificates was an attempt to restrict appellee’s operation on the basis of newly developed policies. The record does not support this conclusion. The District Court believed it significant that Division 5 only adopted the recommendations of a hearing examiner rather than authoring approval orders of its own. Additionally, the court found special meaning in the fact that one of the certificates issued to appellee contained the relevant reservation while the ones in issue did not. Further, the court viewed the issuance of unrestricted certificates after the commencement of the related carrier proceedings in 1941 as especially important. Viewing these facts, the court refused to accept the majority conclusion of inadvertence. In our view, however, the Commission conclusion is well supported. First, we see no special significance in the fact that Division 5 adopted, without modification, the hearing examiner’s recommendations. Under the practices of the Commission, this is not unusual, see, e. g., 53 M. C. C. 97; 53 M. C. C. 117; 46 M. C. C. 328; and the hearing examiner’s report made it clear that appellee’s operations were to be circumscribed. Second, there is nothing in the record or in the dissenting opinions of the Commission to indicate that the Commission, or a Division, or any Commissioner instructed the staff to delete the restrictions and increase the scope of appellee’s operations. This factor militates strongly in favor of the Commission’s conclusion that the reservations inadvertently were omitted, particularly when it would have been improper for the Commission td change its decision without notice to the protestants who had appeared before the hearing examiner in opposition at the original finance proceedings and had taken exception to at least one of the purchases. 49 U. S. C. § 5 (2) (b); 5 U. S. C. § 1004. Cf. Federal Communications Comm’n v. National Broadcasting Co. (KOA), 319 U. S. 239. Third, the issuance of one restricted certificate is not inconsistent with the Commission finding because, had the Commission changed its policies, it likely would have treated the route there involved similarly to the four routes in question. In fact, the issuance of this restricted certificate really supports the conclusion that the others were not issued because of a change of policy. Also, the Commission’s exposition of its internal procedures shows how the error could easily have occurred. Finally, as the dissent below points out, at the time these certificates were issued, the staff sections of the Commission normally dealt with certificates authorizing unrestricted service by non-rail-affiliated motor carriers. The certificates issued here were, therefore, unusual, and it is easy to see how the restrictions were omitted. 153 F. Supp. 572, 578-579. Under all these circumstances, the conclusion of the Commission was compelled by the record. Appellee complains that the Commission, or at least Division 5, improperly took official notice of the internal administrative practices and procedures of the Commission. The first full exposition of these procedures appeared in the report of Division 5 in the reopened proceedings, although certain of them had been mentioned in the hearing examiners’ reports. Appellee claims that the Commission had to disclose these procedures at the hearing so that it would have a chance to rebut unfavorable inferences which might be drawn from them. But we fail to see what prejudice could have accrued from taking official notice of the practices, for appellee had adequate opportunity to rebut inferences drawn from them on its argument to the full Commission. United States v. Pierce Auto Freight Lines, 327 U. S. 515. Particularly is this true where there is no showing that the procedures were misstated to appellee’s prejudice. This is not a case like Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U. S. 292, or United States v. Abilene & Southern R. Co., 265 U. S. 274, where the “facts” officially noticed were in doubt or controverted or were discussed for the first time in the final decision of the Commission. II. The remaining question is whether the Commission has the power to modify certificates issued due to inadvertence. This Court has, on one occasion, reserved this question in a case where it determined that inadvertence was not the reason for the failure to issue a proper certificate. United States v. Seatrain Lines, 329 U. S. 424. And on another occasion, in affirming the decision of a three-judge court, we ruled that the power, if any, may only be exercised after proper opportunity for notice and hearing. United States v. Watson Bros. Transportation Co., 350 U. S. 927. It is axiomatic that cou'rts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake. Gagnon v. United States, 193 U. S. 451. Rule 60 (a) of the Federal Rules of Civil Procedure recognizes this power and specifically provides that “[clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” A similar power is vested in the Interstate Commerce Commission. Section 17 (3) of the Act creating the Commission, 49 U. S. C. § 17 (3), provides that: “The Commission shall conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice.” This broad enabling statute, in our opinion, authorizes the correction of inadvertent ministerial errors. To hold otherwise would be to say that once an error has occurred the Commission is powerless to take remedial steps. This would not, as Congress provided, “best conduce to the ends of justice.” In fact, the presence of authority in administrative officers and tribunals to correct such errors has long been recognized— probably so well recognized that little discussion has ensued in the reported cases. Bell v. Hearne, 19 How. 252. Of course, the power to correct inadvertent ministerial errors may not be used as a guise for changing previous decisions because the wisdom of those decisions appears doubtful in the light of changing policies. Such was the case in United States v. Seatrain Lines, supra, where it was apparent that the Commission had not reopened prior proceedings to correct a mistake in the issuance of a certificate but to execute a subsequently adopted policy. Cf. Watson Bros. Transportation Co. v. United States, 132 F. Supp. 905 (D. C. Neb.), aff’d 350 U. S. 927. To allow the reopening of proceedings in such a case under the pretext of correction would undercut the obvious purpose of § 212 of the Interstate Commerce Act, 49 U. S. C. § 312, which makes the issuance of a certificate the final step in the administrative process. But nothing in that Section prohibits the correction of inadvertent errors. Here, as we have shown, the certificates issued to appellee mistakenly omitted an intended provision, and the Commission’s subsequent action was not the execution of a newly adopted policy but, as it found in a proceeding in which appellants participated after notice, merely the correction of the inadvertence. The judgment of the District Court is Reversed Mr. Justice Whittaker, believing that the evidence does not support the Commission’s finding that omission of restrictions from the four certificates of convenience and necessity involved was due to mere inadvertent clerical errors of the Commission’s staff, would affirm the judgment of the District Court. 153 F. Supp. 572. Mr. Justice Stewart took no part in the consideration or decision of these cases. The Motor Carrier Act of 1935, § 213, 49 Stat. 556, conditioned acquisitions as follows: “Provided, however, That if a carrier other than a motor carrier is an applicant, or any person which is controlled by such a carrier other than a motor carrier or affiliated therewith within the meaning of Section 5 (8) of part I, the Commission shall not enter such an order unless it finds that the transaction proposed will promote the public interest by-enabling such carrier other than a motor carrier to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition.” The Commission has long interpreted the language of § 5 (2) (b), quoted above, to confine acquisitions of motor carriers by railroads or their affiliates to operations which are auxiliary or supplementary to the train service of the railroad. See American Trucking Assns. v. United States, 355 U. S. 141, 148. Campbell Sixty-Six Express, Inc., v. Frisco Transportation Co., 43 M. C. C. 641. Campbell Sixty-Six Express, Inc., v. Frisco Transportation Co., 46 M. C. C. 222. The appellants in Nos. 15 and 16, American Trucking Associations, Inc., and Railway Labor Executives’ Association, urge us to hold that the Commission was without power/to issue unconditioned certificates to appellee because of the requirements of § 5 (2) (b) and, therefore, the certificates issued to appellee were void. We have not had occasion to rule definitively whether that Section states rigid requirements that operations of rail-affiliated motor carriers be auxiliary or supplementary to train service. Cf. American Trucking Assns. v. United States, 355 U. S. 141. As resolution of the question is unnecessary for the present decision, we intimate no position with regard to it. See Motor Carrier Act of 1935, § 213, 49 Stat. 556. The reopened proceedings originally involved six routes. The certificate covering one of these contained a reservation of authority, and conditions imposed in connection with that route are not at issue here. On another route, the Commission’s original approval was unconditional as was the certificate issued in connection with it. The Commission has abandoned efforts to impose new conditions on this route. See also Davis, Administrative Law (1951), 600. And the agencies have presumed the existence of such power. See Kenosha Auto Transport Corporation — Interpretation of Certificate, 53 M. C. C. 85; Petroleum Carrier Corp. v. R. Q. Black, doing business as Superior Trucking Co., 51 M. C. C. 717; Greyhound Corporation Extension of Operations—Slidell, La., 47 M. C. C. 103; Santa Fe Trail Transportation Company Extension of Operations — New Mexico Points, 46 M. C. C. 775; Pan American Airways, Inc., North Atlantic Route Amendments, 7 C. A. B. 849. 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:
sc_decisiontype	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. FEDERAL POWER COMMISSION v. UNITED GAS PIPE LINE CO. No. 247. Decided October 21, 1968. Solicitor General Griswold, Harris Weinstein, Richard A. Solomon, and Peter H. Schiff for petitioner in No. 247. Reuben Goldberg and George E. Morrow for petitioner in No. 248. David T. Searls and Vernon W. Woods for respondent in both cases. Together with No. 248, Memphis Light, Gas & Water Division v. United Gas Pipe Line Co., also on petition for writ of certiorari to the same court. Per Curiam. When these cases were here the first time, we sustained the authority of the Federal Power Commission to determine the tax component of United’s cost of service in accordance with the formula developed by it in Cities Service Gas Co., 30 F. P. C. 158 (1963), but remanded the cases with respect to whether in applying the Cities Service formula it was significant that United apparently had both jurisdictional and non jurisdictional activities and income. FPC v. United Gas Pipe Line Co., 386 U. S. 237 (1967). Over the objections of the Commission, the Court of Appeals held that the issue had been sufficiently raised by United in its petition for rehearing before the Commission in accordance with § 19 of the Natural Gas Act, 52 Stat. 831, as amended, 15 U. S. C. § 717r, and that the Cities Service formula required that consolidated return tax savings coming to United be first allocated to United’s non jurisdictional income. The petitions for certiorari are granted and the judgment of the Court of Appeals is reversed. Although we acquiesce in the Court of Appeals’ construction of United’s petition for rehearing filed with the Commission, the issue on remand was not in the proper posture for final determination by the Court of Appeals and should have been remanded to the Commission for further consideration. It is true that the Commission in its opinion had remarked that “United is largely a regulated company, and we shall designate it as such for the purpose of these computations.” United Gas Pipe Line Co., 31 F. P. C. 1180, 1190 (1964). But the Commission made no effort to justify this characterization of United in terms of the findings, the fundamentals of the Cities Service formula, or the applicable law. This may have been because the adversary proceedings were primarily concerned with the validity of the formula itself and never focused precisely on the question of intra-company revenue and cost allocation. Whatever the reason, there was “no indication of the basis on which the Commission exercised its expert discretion/’ no articulation of “any rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 167, 168 (1962). On this issue the Commission’s order was vulnerable on rehearing and in the Court of Appeals. But it does not follow that the Court of Appeals, in the face of the Commission’s insistence that its decision was wholly consistent with its Cities Service formula, should have itself determined that consolidated return savings be first allocated to non jurisdictional income and that “income from the unregulated component of United is sufficiently large to absorb all such net tax losses and no excess remains to reduce the regulated taxable income of United.” United Gas Pipe Line Co. v. FPC, 388 F. 2d 385, 391-392 (C. A. 5th Cir. 1968) (footnote omitted). These questions should have had adequate attention from the Commission in the first instance before being subjected to judicial review. Before the courts can properly review agency action, the agency must disclose the basis of its order and “give clear indication that it has exercised the discretion with which Congress has empowered it,” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941); otherwise the courts are propelled “into the domain which Congress has set aside exclusively for the administrative agency.” SEC v. Chenery Corp., 332 U. S. 194, 196 (1947). The judgment of the Court of Appeals is reversed and the cases are remanded with instructions to return the cases to the Commission for further proceedings. It is so ordered. Mr. Justice Fortas and Mr. Justice Marshall took no part in the consideration or decision of these cases. The motion for leave to use the record in the prior proceedings before this Court, Nos. 127 and 128, October Term, 1966, is granted. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. CUPP, PENITENTIARY SUPERINTENDENT v. MURPHY No. 72-212. Argued March 20, 1973 Decided May 29, 1973 Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, BlachmuN, Powell, and Rehnquist, JJ., joined. White, J., filed a concurring statement, post, p. 297. Marshall, J., filed a concurring opinion, post, p. 297. Blackmun, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 300. Powell, J., filed a concurring opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 300. Douglas, J., post, p. 301, and Brennan, J., post, p. 305, filed opinions dissenting in part. Thomas H. Denney, Assistant Attorney General of Oregon, argued the cause for petitioner. With him on the brief were Lee Johnson, Attorney General, and John W. Osborn, Solicitor General. Howard R. Lonergan argued the cause and filed a brief for respondent. Alan S. Ganz, Frank Carrington, Ronald E. Sherk, and Fred E. Inbau filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal. Melvin L. Wulf, Burt Neuborne, and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. Mr. Justice Stewart delivered the opinion of the Court. The respondent, Daniel Murphy, was convicted by a jury in an Oregon court of the second-degree murder of his wife. The victim died by strangulation in her home in the city of Portland, and abrasions and lacerations were found on her throat. There was no sign of a break-in or robbery. Word of the murder was sent to the respondent, who was not then living with his wife. Upon receiving the message, Murphy promptly telephoned the Portland police and voluntarily came into Portland for questioning. Shortly after the respondent's arrival at the station house, where he was met by retained counsel, the police noticed a dark spot on the respondent's finger. Suspecting that the spot might be dried blood and knowing that evidence of strangulation is often found under the assailant’s fingernails, the police asked Murphy if they could take a sample of scrapings from his fingernails. He refused. Under protest and without a warrant, the police proceeded to take the samples, which turned out to contain traces of skin and blood cells, and fabric from the victim’s nightgown. This incriminating evidence was admitted at the trial. The respondent appealed his conviction, claiming that the fingernail scrapings were the product of an unconstitutional search under the Fourth and Fourteenth Amendments. The Oregon Court of Appeals affirmed the conviction, 2 Ore. App. 251, 465 P. 2d 900, and we denied certiorari, 400 U. S. 944. Murphy then commenced the present action for federal habeas corpus relief. The District Court, in an unreported decision, denied the habeas petition, and the Court of Appeals for the Ninth Circuit reversed, 461 F. 2d 1006. The Court of Appeals assumed the presence of probable cause to search or arrest, but held that in the absence of an arrest or other exigent circumstances, the search was unconstitutional. Id., at 1007. We granted certiorari, 409 U. S. 1036, to consider the constitutional question presented. The trial court, the Oregon Court of Appeals, and the Federal District Court all agreed that the police had probable cause to arrest the respondent at the time they detained him and scraped his fingernails. As the Oregon Court of Appeals said, “At the time the detectives took these scrapings they knew: “The bedroom in which the wife was found dead showed no signs of disturbance, which fact tended to indicate a killer known to the victim rather than to a burglar or other stranger. “The decedent’s son, the only other person in the house that night, did not have fingernails which could have made the lacerations observed on the victim’s throat. “The defendant and his deceased wife had had a stormy marriage and did not get along well. “The defendant had, in fact, been at his home on the night of the murder. He left and drove back to central Oregon claiming that he did not enter the house or see his wife. He volunteered a great deal of information without being asked, yet expressed no concern or curiosity about his wife’s fate.” 2 Ore. App., at 259-260, 465 P. 2d, at 904. The Court of Appeals for the Ninth Circuit did not disagree with the conclusion that the police had probable cause to make an arrest, 461 F. 2d, at 1007, nor do we. It is also undisputed that the police did not obtain an arrest warrant or formally “arrest” the respondent, as that term is understood under Oregon law. The respondent was detained only long enough to take the fingernail scrapings, and was not formally “arrested” until approximately one month later. Nevertheless, the detention of the respondent against his will constituted a seizure of his person, and the Fourth Amendment guarantee of freedom from “unreasonable searches and seizures” is clearly implicated, cf. United States v. Dionisio, 410 U. S. 1, Terry v. Ohio, 392 U. S. 1, 19. As the Court said in Davis v. Mississippi, 394 U. S. 721, 726-727, “Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests’ or 'investigatory detentions.’ ” In Davis, the Court held that fingerprints obtained during the brief detention of persons seized in a police dragnet procedure, without probable cause, were inadmissible in evidence. Though the Court recognized that fingerprinting “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search,” id., at 727, the Court held the station-house detention in that case to be violative of the Fourth and Fourteenth Amendments. “Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention,” id., at 726. The respondent in this case, like Davis, was briefly detained at the station house. Yet here, there was, as three courts have found, probable cause to believe that the respondent had committed the murder. The vice of the detention in Davis is therefore absent in the case before us. Cf. United States v. Dionisio, supra. The inquiry does not end here, however, because Murphy was subjected to a search as well as a seizure of his person. Unlike the fingerprinting in Davis, the voice exemplar obtained in United States v. Dionisio, supra, or the handwriting exemplar obtained in United States v. Mara, 410 U. S. 19, the search of the respondent’s fingernails went beyond mere “physical characteristics . . . constantly exposed to the public,” United States v. Dionisio, supra, at 14, and constituted the type of “severe, though brief, intrusion upon cherished personal security” that is subject to constitutional scrutiny. Terry v. Ohio, supra, at 24-25. We believe this search was constitutionally permissible under the principles of Chimel v. California, 395 U. S. 752. Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. Id., at 755-762. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id., at 762-763. The Court recognized in Chimel that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement. Thus, a warrantless search incident to arrest, the Court held in Chimel, must be limited to the area “into which an arrestee might reach.” Id., at 763. Where there is no formal arrest, as in the case before us, a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence on his person. Since he knows he is going to be released, he might be likely instead to be concerned with diverting attention away from himself. Accordingly, we do not hold that a full Chimel search would have been justified in this case without a formal arrest and without a warrant. But the respondent was not subjected to such a search. At the time Murphy was being detained at the station house, he was obviously aware of the detectives’ suspicions. Though he did not have the full warning of official suspicion that a formal arrest provides, Murphy was sufficiently apprised of his suspected role in the crime to motivate him to attempt to destroy what evidence he could without attracting further attention. Testimony at trial indicated that after he refused to consent to the taking of fingernail samples, he put his hands behind his back and appeared to rub them together. He then put his hands in his pockets, and a “metallic sound, such as keys or change rattling” was heard. The rationale of Chimel., in these circumstances, justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails, cf. Schmerber v. California, 384 U. S. 757. On the facts of this case, considering the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence, we cannot say that this search violated the Fourth and Fourteenth Amendments. Accordingly, the judgment of the Court of Appeals is Reversed. Mr. Justice White joins the opinion of the Court but does not consider the issue of probable cause to have been decided here or to be foreclosed on remand to the Court of Appeals where it has never been considered. Oregon defines arrest as "the taking of a person into custody so that he may be held to answer for a crime.” Ore. Rev. Stat. § 133.210. As the Court stated in Terry v. Ohio, “our inquiry is a dual one— whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U. S. 1, 19-20. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. MISSOURI-K.-T. R. CO. OF TEXAS v. RIDGWAY. No. 14189. United States Court of Appeals Eighth Circuit. Aug. 30, 1951. Everett Paul Griffin, St. Louis, Mo., and O. O. Touchstone, Dallas, Tex. (G. H. Pen-land, Dallas, Tex., on the brief), for appellant. William H. DeParcq, Minneapolis, Minn. (Chester D. Johnson, Minneapolis, Minn., Harvey B. Cox and Harvey B. Cox, Jr., St. Louis, Mo., on the brief), for appellee. Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges. GARDNER, Chief Judge. The instant action was brought by Ralph P. Ridgway against Missouri-Kansas-Texas Railroad Company under Section 11, Title 45 United States Code Annotated, to recover damages for personal injuries. The parties will be referred to as they were designated in the trial court. At the time of the accident resulting in plaintiff’s injuries he was employed by defendant as a switchman in its yards at Fort Worth, Texas. The defendant is a common carrier and at the time of the accident plaintiff and defendant were engaged in interstate commerce. It is alleged that the accident occurred in the course and conduct of certain switching operations during which, in the performance of his duty, plaintiff was required to get upon a certain car for the purpose of regulating and controlling its movement and speed by operating the hand brake upon the car and and that the car was not equipped with an efficient hand brake and as a result of its defective and inoperative condition plaintiff in operating said brake in the usual and customary manner was caused to be thrown, knocked and pitched from the car to the ground and dragged and run over, resulting in personal injuries. Viewing the evidence, as we must, in a light most favorable to the plaintiff, the facts in connection with the accident may be succintly stated as follows: About 7:30 o’clock on the morning of March 11, 1946, plaintiff mounted a north-bound tank car at its northeast corner and went immediately to the hand brake, intending to stop the car about four or five car lengths off the lead, to make room for other car movements. He stood on the running board, eight or ten inches wide, which completely circled the tank car. After taking the slack out of the hand brake he inserted his club and put some pressure on it but the brake did not retard the progress or speed of the car. He then released the brake and began tightening it up, placing his club in the brake wheel and putting pressure on it. He was stooped over with his left hand on the grabhold which extended all the way around the car at shoulder level. While in this position and pulling clockwise with his brake club, the wheel suddenly broke loose and unexpectedly yielded, coming toward him and throwing him off the moving car. His body landed between the rails of the track, his head hitting the west rail immediately ahead of the wheel which struck his head and knocked it off the rail and he was rendered unconscious. His left hand and his right foot received injuries and he was dragged under the car for some distance. When he recovered consciousness he was lying between the rails. A fellow employee called for an ambulance and he was taken to a hospital for surgical and medical treatment. The extent and severity of his injuries, not being material to the cause of the accident and the right of recovery, may be referred to later herein. The action was tried to a jury and at the close of all the testimony defendant moved for a directed verdict which was denied and the case was submitted to the jury upon instructions to which certain exceptions were saved by defendant. The jury returned a verdict in favor of the plaintiff, assessing his damages at $98,800. Defendant then moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied, and it prosecutes this appeal. It seeks reversal on various grounds not very succinctly stated in its brief but it contends that: (1) the court erred in denying its motion for a dirécted verdict and for judgment notwithstanding the verdict; (2) the trial court erred in admitting certain evidence; (3) counsel for plaintiff was quilty of such misconduct as to constitute reversible error; (4) the verdict of the jury is grossly excessive and monstrous and reflects passion, bias and prejudice on the part of the jury. This action is bottomed on the so-called Safety Appliance Act, Title 45, Section 11, U.S.C.A. This act among other things provides that, “It shall be unlawful for any common carrier subject to the provisions of sections 1-16 of this title to haul, or permit to be hauled or used on its line, any car subject to the provisions of said sections not equipped with appliances provided for in sections 11-16 of this title, to wit: All cars must be equipped with secure sill steps and efficient hand brakes; * * The act was designed to safeguard and protect railroad employees against the hazard of their employment by requiring railroads to equip their cars with various safety devices including “efficient hand brakes”. Liability on the part of the carrier for injuries is predicated on its failure to observe the requirements of the act. Compliance with the act is an absolute duty and any failure to comply therewith which results in injury to an employee gives rise to liability to compensate the injured employee for his injuries regardless of actual negligence on the part of the railroad company other than failure to comply with the statute. The statutory duty is not satisfied by the exercise of reasonable care in maintaining the prescribed safety appliances in a safe, operative condition, nor is it discharged by the exercise of great care to keep these appliances reasonably safe. If the evidence showed that the appliance which is required by the act was defective or out of repair at the time the injuries were received, no importance can be given to the question as to whether or not this condition was attributable to negligence on the part of the defendant. In the instant case if it be shown that the hand brake was not an efficient hand brake and that such condition caused or contributed to the injuries suffered by the plaintiff, then there was a right of recovery. As said by the Supreme Court in Myers v. Reading Company, 331 U.S. 477, 67 S.Ct. 1334, 1339, 91 L.Ed. 1615, “The respondent is not subject, as has been suggested, • to an absolute liability to its employees comparable to that established by a workmen’s compensation law. As an interstate common carrier, however, it is subject to liability for injuries to its employees resulting from its violation of its absolute duty to comply with the Safety Appliance Acts. The evidence here was sufficient to support the verdict for the petitioner, whether tested by the formula used by this Court in Improvement Co. v. Munson, 14 Wall. 442 [20 L.Ed. 867]; Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; or Lavender v. Kurn, supra [327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916]. The requirement is for probative facts capable of supporting, with reason, the conclusion expressed in the verdict.” Here the evidence warranted the jury in finding that the plaintiff was attempting to operate this brake in the usual and customary manner; that when so operated it did not effectively perform its functions as an efficient brake and the evidence warranted the jury in finding that the failure to so function was the proximate cause of plaintiff’s injuries. But not only was there proof that the brake did not properly function but there was proof that it was mechanically defective. The proof was undisputed that the chain which normally tightens about the brake-shaft when the brake is being set was five or six inches longer than the standard chain in general use. There was evidence that because of this extra length it kinked up or “wadded and all knotted up”; in fact, testimony offered on behalf of the-defendant itself was to the effect that this chain was too long for an efficient brake.. In Myers v. Reading Co., supra, in speaking of the character of proof to show inefficiency the court said: “The inefficiency of the brake in this case may have consisted of its defective condition or its defective functional operation resulting, in either case, in its knocking from the brake platform an experienced railroad man attempting to tighten or set the brake in the customary manner described in his testimony.” We think the jury could reasonably have found that the brake was not an efficient brake and that its defective condition contributed to or caused plaintiff’s injuries and hence there was no error in denying defendant’s motion for a directed verdict. There was offered in evidence Exhibits A-l, A-2 and A-3, the records with reference to the condition of the hand brake. These were records regularly kept by the defendant. They were offered for the limited purpose of showing the condition of this brake at the time of the accident and they purported to show that fact. But it is claimed that they were inadmissible because they were evidence of subsequent repairs. However, they were not offered for the purpose of showing subsequent repairs and whatever notation the records may have had with reference to subsequent repairs might have been deleted had defendant’s counsel so asked. Manifestly, the notation showing the condition of the brake at the time of the accident was admissible and that part of the record might have been read to the jury, omitting the other parts, had counsel for defendant so desired. Baltimore & O. R. Co. v. Felgenhauer, 8 Cir., 168 F.2d 12; Southern Pacific Co. v. Schoer, 8 Cir., 114 F. 466. But quite aside from this, defendant itself showed that there had been subsequent repairs or changes made in the appliance by shortening the chain, and there was nothing in these exhibits that was not abundantly proven by other testimony in the case so that even if it were technical error to admit them in evidence it was error without prejudice. There was also objection to the introduction in evidence of the hospital record. This did not go to the right of recovery but rather to the extent of injuries and suffering. This record was identified and authenticated by the record librarian. It was kept in the usual and regular course of business of the hospital. It is not reproduced in the record and we think it was admissible. New York Life Ins. Co. v. Taylor, 81 U.S.App.D.C. 331, 158 F.2d 328; Rule 43, Federal Rules of Civil Procedure, 28 U.S.C.A. So far as we can determine the record contained no evidence that was not shown by other substantial evidence and the admission of the record, if erroneous, has not been shown to have been prejudicial. The contentions of the defendant that the verdict is excessive and that plaintiff’s counsel was guilty of prejudicial misconduct in his argument to the jury are so closely related that we shall consider them together. We have quite consistently held that in a tort action the excessiveness of the verdict is a question to be submitted to the trial judge on motion for new trial and can not be considered as a ground for reversal by this court. Kroger Grocery & Baking Co. v. Yount, 8 Cir., 66 F.2d 700, 93 A.L.R. 1166; Peitzman v. City of Illmo, 8 Cir., 141 F.2d 956; Chicago & N. W. Ry. Co. v. Green, 8 Cir., 164 F.2d 55; St. Louis Southwestern Ry. Co. v. Ferguson, 8 Cir., 182 F.2d 949. The rule which we have followed is not, however, without challenge and some of the Federal courts now hold that an appellate court may review as a question of law whether the trial court abused its discretion in refusing to set aside a verdict for excessiveness. This was considered by us in Chicago & N. W. Ry. Co. v. Curl, 8 Cir., 178 F.2d 497, 502, but we said that even recognizing the rule that where a verdict is so manifestly without support in the evidence that failure to set it aside amounts to an abuse of discretion on the part of the trial court, “we are unable to find anything in this record to justify that action in this case.” The Supreme Court in Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 511, 94 L.Ed. 683, referring to a contention that the verdict was excessive, among other things said: “We agree with the Court of Appeals that the amount of damages awarded by the District Court’s judgment is not monstrous in the circumstances of this case. * * * ” (Italics supplied). And in St. Louis Southwestern Railway Co. v. Ferguson, supra, we said: “From this statement it would appear that the Court had undertaken to scrutinize the amount of the damages, and that it mistakenly assumed that we had done so also. * * * “It may be that a change in the rule is desirable, to allow a general review of the question of excessiveness, such as is the practice in many state appellate courts, or with a more restrained sense of responsibility, perhaps, to permit judgment to be passed ■ upon whether there has been an abuse of discretion by the trial court in refusing to set aside a verdict on motion for new trial. Difficulties, however, would be involved in any such practice, as Judge Learned Hand has pointed out in the Miller case [Miller v. Maryland Casualty Co.], supra, 2 Cir., 40 F.2d [463] at page 465; and,' under the concept of appellate function in jury cases which has heretofore been expressed by the decisions of the Supreme Court and in our own, the change is not one which we would feel entitled to make.” [182 F.2d 955.] The verdict in this case is confessedly a large one and whether or not it can properly be proclaimed as “monstrous” we need not attempt to decide. We satisfy ourselves by saying that in our opinion it is so excessive as to shock the conscience. Plaintiff suffered serious injuries.. He is not, however, as a result of those injuries a helpless cripple. From most of them there has 'been a recovery. There remains a permanent injury to his left hand and a permanent injury to one of his feet. He has doubtless suffered much. While his left hand is permanently injured he has the hand and all five fingers and can use the thumb and first finger of the injured hand. His doctor testified that he had a 75 per cent loss of the use of the left hand but that it was a useful hand. His doctor also testified that he had a 50 per cent loss of the use of his injured foot but that the injured foot was a usable foot. He uses it in walking and in driving a car. There were no permanent injuries to his nervous system and he suffered no brain injury. Though he suffered a fracture of the spine it has healed. Not long after his injuries he made trips on trains, busses and automobiles, and according to his own testimony, in October, 1946, he was walking on his injured foot, driving his car, using the, injured foot in driving his car, including applying the brake and using his injured hand in driving his car, and using his skill and brains in preparing or helping to prepare his case. He traveled by train to Kansas City and by plane to Minneapolis. He was able to travel alone, to walk alone, to bathe and dress himself alone and attend to all the necessities of a traveler on tour. For about six months he traveled to various parts of Texas soliciting personal injury cases for Mr. McDonald, his then Minneapolis lawyer. He, without assistance, traveled to various places, including New .York City. Dr. Louis J. Levy, one of plaintiff’s dpctors who treated him in the hospital said that he “has a useful leg, has a useful hand, that he conducts himself intelligently, that he saw him taking notes during the depositions in October, 1948, that there are undoubtedly various fields where Ridgway could work, even with his hand and with his leg and earn a living.” One of the doctors who treated Ridgway testified that in his opinion he could do various kinds of clerical work, with his leg and hand in their present condition and in his present physical condition. We need not go into further details as. to his apparent physical condition. Suffice it to say that he is not as a result of his injuries a helpless cripple. During the year immediately prior to his accident plaintiff’s gross earnings were $1778.55. The verdict is for an amount more than fifty-five times his annual earnings for the year immediately prior to his accident. He has an expectancy of about thirty-one years. Assuming that his earnings would continue substantially the same during that time the verdict would still be nearly twice as much as he could be expected to earn. Damages should be compensatory, there being no ground for assessing punitive damages. Having reached the conclusion that the amount of the verdict is not fairly supported by the evidence we turn to a consideration of the alleged misconduct of counsel in his argument to the jury, with a view of determining whether the verdict is the result of passion and prejudice aroused by his argument. Manifestly, if an unjust verdict is the result of misconduct of counsel it ought to be set aside. It is fundamental that the argument of counsel should be confined to the questions at issue and the evidence relating thereto adduced at the trial, and such inferences, deductions or analogies as may reasonably be drawn therefrom. In this case there was not involved any question of negligence and the substantial evidence so far as the merits of the case are concerned rather clearly indicated liability so that the paramount issue to be submitted to the jury was the amount of damages. Counsel for plaintiff in an attempt to explain, excuse or justify some of his remarks to the jury has printed a supplemental record. The proceedings set out in the supplemental record were not before the jury and hence would not warrant any statement or argument 'based thereon. In so far as such argument was based upon what occurred before the jury it might have been warranted but it was based upon or claimed to be justified by what occurred during the bearing of various motions, a matter entirely foreign to the issues to be tried by the jury. The issues to be determined by the jury were whether the hand brake was an efficient brake and if not whether plaintiff’s injuries resulted from the failure of defendant to provide such efficient brake, and also the amount of damages resulting from plaintiff’s injuries. In the course of his argument to the jury plaintiff’s counsel said: “All I can say is that it was a lucky day for Ralph Ridgway when McDonald’s investigator Iielin got possession of that chain, long enough that day down in Fort Worth to get it photostated and to get it measured, or neither this court or this jury would ever have known how long it was, I can assure you that.” Again counsel said: “ * * * thank God for Ralph Ridgway, we had some records in this case, finally got possession of them, we have got them, and if we did not have them you would not have recognized this was the same lawsuit.” There was apparently a studied effort to convey to the jury the impression that opposing counsel were attempting to conceal or suppress facts. Texas Indemnity Ins. Co. v. McCurry, Tex.Com.App., 41 S.W.2d 215, 78 A.L.R. 760. How plaintiff secured possession of the records referred to was not an issue in the case but the inference was that defendant was to blame for not making its records more easily available to plaintiff. Again, this was not an issue before the jury. In his closing argument counsel, impersonating plaintiff, said of defendant: “ * * they broke my back in three places, and took me off the payroll the same day, they fractured my skull in two places, gave me a brain injury with osteomyelitis, I had seven fractured ribs, a fractured shoulder, I have got a crushed hand, a crushed foot.” As we have before observed there was no question of negligence in this case and certainly no question of willful or wanton conduct on behalf of the defendant resulting in plaintiff’s injuries and there was no basis for this denunciation and it could haVe had no* purpose other than to arouse the passion and prejudice of the jury. The entire argument is punctured by unwarranted denunciations of defendant and its counsel and this intemperance in argument is repeated in counsel’s brief in this court wherein he says: “The only misconduct in this case may be attributed to counsel for defendant. From the very inception of this litigation, the conduct of defendant’s counsel has been characterized by hypocrisy, fraud, dishonesty and buffoonery. They sought to conceal evidence, disobeyed court orders, resorted to every known technicality and stalling maneuver, made innumerable and senseless objections, and attempted to make the administration of justice as difficult as possible.” While considerable latitude is allowed counsel in argument before the jury in criticizing opposing counsel, nevertheless counsel must keep within the evidence and may not employ language not justified by the record, or resort to* uncalled for personal abuse, and it is highly reprehensible for counsel in argument to use, without supporting evidence, language implying that facts have been suppressed by opposing counsel. While freedom of speech must be accorded counsel, it is said to be license, not freedom of speech, for counsel to base his argument on an appeal to passion and prejudice not warranted by the proof. New York Central R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 84 F.2d 569; Kroger Grocery & Baking Co. v. Stewart, 8 Cir., 164 F.2d 841; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325; Union Electric Light & Power Co. v. Snyder Estate Co., 8 Cir., 65 F.2d 297; Rouse v. Burnham, 10 Cir., 51 F.2d 709; Walsh v. Terminal R. Ass’n of St. Louis, 353 Mo. 458, 182 S.W.2d 607; Monroe v. Chicago & A. R. Co., 297 Mo. 633, 249 S.W. 644; Dodd v. Missouri-Kansas-Texas R. Co., 353 Mo. 799, 184 S.W. 2d 454. In Kroger Grocery & Baking Co. v. Stewart, supra, the alleged misconduct of counsel for plaintiff in his argument Was that opposing counsel “had ‘tried everything except the facts’”. [164 F.2d 844.] In the course of the opinion it is said: “The remark was improper and offensive and the refusal of the court to direct the jury to disregard it was error. The attitude of this Court and of other federal appellate courts toward, the interjection of irrelevant personalities and appeals to prejudice or passion in final argument, has been so clearly stated in many cases as to call for no1 further discussion.” In view of the uniform holding of this court on this question we can not hold that the defendant has had a fair and impartial trial and that the verdict was not the result of passion and prejudice aroused by the appeals of counsel in his argument. It is to be noted too that , while the defendant’s counsel made timely objection to the argument of counsel their objections were overruled and counsel was permitted to proceed without reprimand and without instructions to the jury to disregard the improper remarks. We repeat with approval the words of Judge Sanborn speaking for this court in Kroger Grocery & Baking Co. v. Stewart, supra: “This Court, in the interest of an orderly administration of justice, will continue to do all that reasonably may be done to assure litigants that a trial in a District Court of the United States shall be so conducted that the verdict of the jury fairly may be assumed to be based upon an impartial consideration of the evidence and the applicable law.” Convinced as we are that the defendant did not have a fair trial and that the verdict was influenced by the improper appeals of counsel for plaintiff to passion and prejudice, the judgment based thereon is reversed and the cause remanded with directions to grant a new trial. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. STATE OF MARYLAND for Use of JOHNSON et al. v. UNITED STATES et al. No. 5672. Circuit Court of Appeals, Fourth Circuit. Jan. 31, 1948. Paul Berman, of Baltimore, Md. (Sigmund Levin and Theodore B. Berman, both of Baltimore, Md., on the brief), for appellants. George W. P. Whip, of Baltimore, Md. (Bernard J. Flynn, U. S. Atty., Carl Ross McKenrick, Asst. U. S. Atty., and Lord & Whip, all of Baltimore, Md., on the brief), for appellees United States and De La Rama S. S. Co. B. Conway Taylor, Jr., of Baltimore, Md. (W. Hamilton Whiteford and Due, Nickerson & Whiteford, all of Baltimore, Md., on the brief), for appellee American Ship Service Co. Before PARKER, SOPER and DOBIE, Circuit Judges. SOPER, Circuit Judge. This is an appeal from a judgment of the District Court dismissing libels in two cases filed against the United States of America and the De La Rama Steamship Company. In the first case the libel was filed in the name of the State of Maryland to the use of Ella V. Johnson, the surviving widow, and Jennie Johnson, the surviving mother of George D. Johnson, deceased, under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., and under the Maryland death by wrongful act statute, Article 67, Sections 1, 3, of the Maryland Code (1939). In the second case the libel was filed by Ella V. Johnson as administratrix of the estate of George D. Johnson under the Suits in Admiralty Act and under Article 93, Section 109, of the Maryland Code (1939). The Suits in Admiralty Act provides that no vessel owned by the United States, or by any corporation of which the United States shall own the entire outstanding capital stock, or which shall be operated by or for the United States or such corporation, shall be subject to seizure by judicial process, but a libel in personam may be filed against the United States, or such corporation, in cases where a proceeding in admiralty could be maintained if the vessel were privately owned. Sections 1 and 3 of Article 67, Md. Code (1939), provide that in the case of death by wrongful act, neglect or default, an action may be brought by and in the name of the State of Maryland for the benefit of the wife, husband, parent and child of the perrson whose death shall have been so caused. Article 93, Section 109, of the Maryland Code provides that if the death of a person results from a wrong for which a personal action might have been maintained or commenced, the executor or administrator may prosecute an action to recover funeral expenses not exceeding $300 in addition to any other damages recoverable in such actions. This latter statute is independent of Article 67 of the Maryland Code and, in the case of a death by wrongful act, separate actions may be maintained under both statutes. Stewart v. United Electric Light & Power Co., 104 Md. 332, 65 A. 49, 8 L.R.A.,N.S., 384, 118 Am.St.Rep. 410. However, because of the similarity of the issues involved, the two libels were consolidated in the District Court. American Ship Service Company was impleaded as respondent in both libels over its protest upon the petition of the original respondents. ■ The principal issues on this appeal relate to the District Judge’s findings of fact. The deceased, George D. Johnson, was a stevedore employed by the American Ship Service Company, a stevedoring company which had contracted to clean the holds of the S. S. Elihu Thompson. She was a Liberty ship owned by the United States and operated by its agent, the De La Rama Steamship Company. She was lying at the time in the navigable waters of the United States at Pier No. 1 of the Maryland Dry-dock Company in the Baltimore harbor. She had previously carried a cargo of grain from Vancouver in British Columbia to Rotterdam, whence she had returned to Baltimore. In order to facilitate the carriage of grain from Vancouver to Rotterdam, so called “shifting boards,” over 20 feet in height, had been set up in the holds of the ship to prevent shifting of the grain during the passage. They traversed each hold from fore to aft, and were placed on edge in grooves running down the center of the holds. The shifting board in hold No. 2, in which we are particularly interested, consisted of three fir panels joined together. These panels, in turn, were supported by timber beams known as “shores” which were attached to the shifting board by cleats and extended from the panels in a downward and outward direction until they reached the skin of the ship. Originally the shores were secured in part at this end by sweat battens, but the battens were removed at Rotterdam following the discharge of the grain cargo, and thereafter the shores were supported only by the frame and the curvature of the ship. After the grain had been discharged at Rotterdam, the holds were loaded with wet-sand ballast. When the ship arrived in Baltimore the ballast was discharged and in order to assist this operation, the center panel, and possibly the fore panel, of the shifting board in hold No. 2 was removed, as were the shores which supported the removed panel or panels. The aft panel, however, and two< supporting shores on the starboard side and one on the port side were retained in hold No. 2, so as to facilitate the carriage of grain in the future. After the holds had been cleaned to the extent that they were “shovel clean,” the American Ship Service Company was engaged to complete the removal of the ballast. Johnson, the deceased, was one of the gang of stevedores employed by American to remove the sand from hold No. 2. For this purpose they used an oil drum which was operated by the ship’s winches and was lowered into the hold, where it was filled by the stevedores. When filled with the • wet sand ballast, the drum weighed approximately 500 pounds. The drum was lowered and raised into and from the hold in a perpendicular line at a distance of approximately 2 or 3 feet from the shore supporting the aft panel on the port side. On one occasion, as the drum was being raised, it swung over and hit the shore which was cleated near the top of the shifting board, so that it was dislodged and fell upon Johnson who had been shoveling sand into the drum. Johnson was removed to a hospital where, after several days, he died. The libelants take the position that the Thompson was not seaworthy in that her appliances were defective and that her unseaworthiness contributed to the accident. Alternatively, they argue that the respondents were guilty of negligence in not having provided Johnson with a safe place to work. Evidence was given by men working in the hold tending to show that the shore was not properly attached to the panel in that one of the cleats by which it was secured was missing; that it was not properly secured at the skin of the ship as the sweat battens supporting the shores had been removed; that the aft panel had been left in a shaky condition by the removal of the center panel and that this added to the instability of its attachment to the shore; and that the panels had rotted and were defective and dangerous at the time of the accident. Some reference was also made in the testimony to the fact that the winches for hold No. 2 were damaged and that the winches for hold No. 1 were used in connection with the No. 2 boom in the removal of the ballast; and it is argued that this method of rigging made it necessary to raise and lower the drum in close proximity to the shore. On the other hand, the chief mate of the Thompson testified that he had inspected the shores and shifting board before the stevedores came aboard the ship to clean it, and that all four of the cleats supporting the shore were in place. He also testified that the panels were not in shaky condition and that the removal of the center panel had not weakened the stability of the aft panel. There was also evidence tending to show that the removal of the sweat battens so that the shore was supported by the frame and curvature of the ship did not impair the security of the structure. The sweat battens, which originally helped to support the shore, were removed in Rotterdam and the ship returned from that port to Baltimore without dislocation of the timbers so that there was good reason to believe that they were secure while the ship lay at anchor in the Baltimore harbor. It was also shown that the method of rigging the winches and boom had been effected by the Terminal Company that discharged the ship, and if this arrangement brought the iron bucket into dangerous proximity with the shore, the stevedoring company could easily have rearranged it in the course of an hour or so, but failed to do so. The District Judge reached the conclusion upon all of this testimony that the fall of the shore was not caused by the absence of a cleat at one end of the shore or the absence of the sweat battens at the other end of the timber, but that the shore was caused to fall by the negligent operation of the iron bucket employed for the removal of the sand. He found that the heavy bucket during the operation was permitted to strike the shore a glancing blow near the point where it was attached to the shifting board and that the force of this blow was sufficient to have caused the fall of the shore even though the four cleats were in place at one end of the timber and the sweat battens at the other. In short, he concluded that the accident was caused by the negligence of the stevedoring company and not by defects in the arrangement of the boards and timbers in the hold of the ship. It is contended that the judgment based on these findings should be reversed on the ground that the weight of the testimony leads to the contrary conclusion, especially as the libelant’s witnesses testified in open court whereas the testimony of the mate upon which the defense especially relied was taken by deposition. The judge, however, did see and hear the stevedores in person and without questioning their sincerity, concluded that their evidence was not as reliable as that of the mate who, having retired from maritime service at the time of his testimony, was no longer connected with the ship. The judge found his testimony particularly convincing since he was responsible for the condition of the holds and personally supervised the arrangement that has been described. Although an appeal in admiralty partakes of the nature of a trial de novo, and we are at liberty to consider the evidence anew, we discover no error and no reason to depart from the rule that a finding by the trial court upon conflicting testimony is presumptively correct even though the evidence is presented in written form. This conclusion also disposes of the contention that the ship was unseaworthy and that the death of the deceased was due to this unseaworthy condition. Seaworthiness is essentially a question of fact, Mahnich v. Southern S. S. Co., 321 U.S. 96, 98, 64 S.Ct. 455, 88 L.Ed. 561; and in this case the District -Judge has found that there were no defects in the arrangement in the holds which produced an unseaworthy condition, and has also found that the accident was due entirely to the negligent operation of the appliances by the stevedoring company. Having reached these conclusions, we have no occasion to consider the question whether the American Ship Service Company was properly impleaded as party respondent against its will in view of the fact that it had secured the payment of compensation to the deceased under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., or the question whether the libelants had any standing to prosecute this appeal in either case in view of the fact that after the judgment was rendered by the District Court they accepted a compensation award under that statute. 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:
songer_casetyp1_7-3-1	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. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright". Benjamin STILLER et al., Defendants-Appellants, v. SQUEEZ-A-PURSE CORPORATION, Plaintiff-Appellee. No. 14411. United States Court of Appeals Sixth Circuit. Nov. 28, 1961. J. William Freeman, Akron, Ohio, for defendants-appellants, Albert R. Teare, Cleveland, Ohio, on the brief. William R. Liberman, New York City, for plaintiff-appellee, Sanford Schnurmacher, Cleveland, Ohio, on the brief. Before MARTIN and CECIL, Circuit Judges, and DARR, District Judge. PER CURIAM. After a former hearing of this patent suit, our court, on May 2, 1960, affirmed per curiam, the judgment of the United States District Court on the basis of that court’s memorandum opinion, published in 175 F.Supp. 667, 669. Squeez-A-Purse Corporation v. Stiller et al., 280 F.2d 424 (C.A. 6), certiorari denied 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56. In the opinion and order of the District Court, which we affirmed, it was recited that “it was conceded that Claim 3 of the Reissue Patent No. 24,166 was the only claim to be looked to in determining whether plaintiff is entitled to a declaratory judgment of invalidity and non-infringement.” The patent in issue covered a coin purse comprised of a quick-opening and self-closing container, made of elastic properties similar to soft rubber, the envelope having relatively small depth and a substantially transverse normally closed slit in one face extending from one periphery to another and having, also, oppositely disposed through apertures, with the respective ends of the aforesaid slit being arched. The top of the arched-slit side had a curvature of less magnitude than the balance of the arched side, the slit face being substantially flat in the region of the slit. The District Court stated that the patent is a product and not a method patent; and held that Claim 3 of the patent in suit constituted invention. The prior art was reviewed, with the adjudication that none of the earlier patents cited read on or disclosed the equivalents of “the elements and features” of the defendants’ purse. The Memorandum Opinion and Order stated distinctly: “Consideration of the evidence presented does not, in my opinion, result in the success of the plaintiff’s efforts to have declared invalid and non-infringed, the defendants’ purse. “I find the defendants’ patent valid and infringed. [Italics supplied.] “It follows that the defendants are not guilty of unfair competition and I so find and conclude. The defendants have every right to prevent infringement of their valid patent and are entitled to the relief sought in their counterclaim.” The memorandum concluded with an order directing that “the complaint be dismissed; that the defendants be awarded judgment of validity and in-infringement on their counterclaim; and that an injunction and accounting be had as prayed, all at plaintiff’s costs.” Within a week after the opinion and order of the District Judge was promulgated, the plaintiff, Squeez-A-Purse Corporation, filed a petition for rehearing and reconsideration in which it presented substantially all the contentions which plaintiff-appellee asserts upon this present hearing. Specifically, the appellee corporation alleged in its petition for reconsideration that the District Court should have rendered a proper decision on all the issues. The defendants-appellants, Stiller and others, submitted a memorandum in opposition to the plaintiff’s petition for rehearing and reconsideration, stating that the court had considered all issues presented by the complaint of the plaintiff; and that there actually had been specific findings upon every issue raised in the pleadings. The United States District Judge sustained the defendants’ position; and, as previously stated, our court affirmed the judgment of the trial court on the basis of its memorandum opinion. We remanded the cause for further proceedings not inconsistent with our order. [280 F.2d 424, supra.] Upon remand, the District Court entered judgment on August 17, 1960, ■wherein .quite material changes were made in its former judgment which had been affirmed -by this appellate court, with subsequent denial of certiorari by the Supreme Court. [364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56.] In its amended judgment, the District Court decreed that the complaint of the plaintiff be sustained as to Claims 1, 2, 4 and 8 of the patent, on the ground of the invalidity thereof, and as to Claims 6 and 7, on the ground of the non-infringement f6 ; + °the5.ssed’ ^ complamt was ordered to be dismissed. The District Court ordered that the mandate of this Court of Appeals affirming its memorandum opinion should constitute the findings and conclusions of the District Court, as provided in 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. But, as stated heretofore, the court made new findings, the substance of which had been presented to it and disallowed by it before the former appeal to this court. . „ , , ,, , n Appellants, Stiller and others, contend that the United States District Court failed to follow the mandate of this court and that an order should be issued, directing the trial court to comply with the mandate. We think the position of the appellants here is well taken. Where we had affirmed directly and unequivocally the original judgment of the District Court, certiorari had been denied by the Supreme Court, and the cause had been remanded for procedure in complianee with our order, the District Court should not have undertaken to revise its original opinion in material aspects. See Briggs v. Penn. R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403; In re Sanford Fork and Tool, 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 414; In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994; Mutual Life Ins. Co. of New York v. Hill, 193 U.S. 551, 24 S.Ct. 538, 48 L.Ed. 788; Victor Talking Machine Co. v. Hoschke, 188 F. 326 (C.A.2); Pocono Rubber Cloth Co. v. J. A. Livingston, 92 F.2d 290, 291 (C.A.3); D’Arcy v. Jackson Cushion Spring Co., 212 F. 889 (C.A.6); Home Indemnity Co. of New York v. O’Brien, 112 F.2d 387 (C.A.6). The cause is remanded to the United states District Court with direction that Paragraphs numbered 2, 2(a) and 4 be stricken from the judgment entered by the court on August 17, 1960, as amended by its order of September 27, 1960; and that there be substituted therefor the following language: (2) «Tlle piaintiff’s'complaint is dismissed and (2a) the defendants are awarded judgment of validity and infringement on their counter-claim.” (4) “Reissue Patent No. 24,166 of the United States is valid at law. Claim 3 0f the patent constitutes invention.” 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_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 OHIO STUDENT LOAN COMMISSION, Plaintiff-Appellee, v. Lauro F. CAVAZOS, Secretary of the United States Department of Education; and United States Department of Education, Defendants-Appellants. Nos. 89-3168, 89-3238. United States Court of Appeals, Sixth Circuit. Argued Oct. 5, 1989. Decided April 2, 1990. Kevin L. Shoemaker (argued), Lawrence J. Miltner, Asst. Atty. Gen., Office of the Atty. Gen., Columbus, Ohio, for plaintiff-appellee. James E. Rattan, Asst. U.S. Atty., Office of the U.S. Atty., Columbus, Ohio, Harold Jenkins, Brian Siegel, Steven Winnick, Dept, of Educ., Neil H. Koslowe (argued), U.S. Dept, of Justice, Civil Div., Washington, D.C., for defendants-appellants. Before KEITH, JONES and GUY, Circuit Judges. NATHANIEL R. JONES, Circuit Judge. Defendants-appellants, Lauro F. Cava-zos, the Secretary of the Department of Education (DOE), and the DOE, appeal judgment and denial of Fed.R.Civ.P. 60(b) relief in this action challenging the constitutionality of certain 1987 Amendments to the Higher Education Act of 1965. For the following reasons, we reverse the grant of summary judgment. I. The Higher Education Act of 1965, as amended, 20 U.S.C. § 1071, et seq. (1982) (the Act), created the Guaranteed Student Loan Program (GSLP), which provides financial assistance to students seeking a college education. Under the GSLP, lenders — such as banks, savings and loans associations and credit unions — make low-interest loans to students. The Secretary subsidizes the loans, but the 58 state or private non-profit guaranty agencies actually guarantee payment of the loan to the lender. The guaranty agency in the matter before us, the Ohio Student Loan Commission (OSLO), then obtains reinsurance from the federal government. The OSLO is a state agency created for the purpose of administering Ohio’s student loan guaranty program. Ohio Rev. Code Chapter 3351 (Baldwin 1988). It is authorized to enter into contracts in its own name, and the state is not liable on its debts. Ohio Rev.Code § 3351.07. Initially, the OSLO received state appropriations to-talling $967,000, but this funding ended in 1967. Currently, the OSLC receives funding from several sources. First, it receives reinsurance payments or reimbursements from the Secretary for losses sustained due to defaults by student borrowers under 20 U.S.C. § 1078(c). The amount of payments varies from 80 percent to 100 percent of the total default, depending upon the agency’s default rate. The OSLC has consistently recorded a default rate below 5 percent, and as such, has received reinsurance for the full amount of defaults. Second, the OSLC receives administrative cost allowances from the Secretary pursuant to 20 U.S.C. § 1078(f). This federal payment is to compensate the state agencies for the cost of administering the GSLP. The amount of administrative cost allowances in a year is equal to one percent of the total principal amount of the loans guaranteed. In 1986 Congress amended the Act, giving agencies such as the OSLC a “contractual right” to receive both reimbursements and administrative cost allowances. 20 U.S.C. § 1078. Third, the OSLC takes in money from non-federal sources. When a student defaults on repayment of a loan, the OSLC, pursuant to its guaranty, pays the lender and in return receives the note. Thirty percent of any money recovered flows to the OSLC, and seventy percent goes to the Secretary, who reimburses the OSLC for its payments to the lender. In addition, the OSLC charges guarantee premiums to lenders as a fee for guaranteeing student loans. The OSLC charges one percent of the principal amount as its fee. Finally, the OSLC receives interest and other investment income from its money held in a reserve fund. Under the authority of the Act, the Secretary and the OSLC have entered into several “reinsurance agreements” whereby the OSLC has become the participatory state agency in the GSLP for the Ohio region. Under these agreements, the Secretary reinsures the OSLC’s guarantees in exchange for the OSLC’s administration of the GSLP. Specifically, the OSLC reviews loan applications, averts defaults where possible, reviews defaults, and of course, guarantees the loans. The Permanent Agreement states that “[t]he agency shall be bound by all changes in the Act or Regulations in accordance with their respective effective dates.” J.App. at 33. On December 22, 1987, as part of the Omnibus Budget Reconciliation Act of 1987, Congress amended the Act to limit the amount of cash reserves that a state guaranty agency could accumulate. Pub.L. No. 100-203, 101 Stat. 1330-36 (1987). In particular, 20 U.S.C. § 1072(e)(1) establishes a formula for determining the maximum amount of funds a guaranty agency may accumulate in its reserve fund. An agency with “excess” reserves (more than the statutory maximum) must transfer the excess to the Secretary. Under 20 U.S.C. § 1072(e)(2), the Secretary can enforce the transfer through one of the following methods: (1) making to the federal government from the state guaranty agency advance payments that are otherwise not due; (2) withholding and cancelling reimbursement claims that are otherwise payable; (3) reducing claims for administrative cost allowances; (4) paying an additional reinsurance fee to the Secretary; or (5) any other acceptable method of reducing payments from or increasing payments to the Secretary. The Secretary deposits all amounts collected under 20 U.S.C. § 1072(e)(2) into the GSLP student loan insurance fund established by 20 U.S.C. § 1081(a). The provisions of 20 U.S.C. § 1072(e) terminated on their own accord on September 30, 1989. The 1987 Amendments also modified 20 U.S.C. § 1078(c), by adding that the “contractual right” of the state agency to the reimbursement payments and the administrative cost allowances are “subject to section 1072(e) [the excess reserve provisions] of this title.” In addition, 20 U.S.C. § 1072(e)(3) authorizes the Secretary to waive the requirements of 20 U.S.C. § 1072(e)(2) if there has been a change in the economic circumstance of the agency or the loan insurance program. The Secretary determined that the OSLC had excess reserves of $26,075,259.00. On February 1, 1988, the OSLC informed the Secretary that it would not turn over the excess reserves to the Secretary because it believed that the requirements of the 1987 Amendments violated the contract between the Secretary and the OSLC. On February 9, 1988, the Secretary advised the OSLC of its obligation under the Act to transfer the excess reserves, and on March 15, 1988, the OSLC filed suit in the United States District Court for the Southern District of Ohio, Judge James L. Graham presiding, seeking declaratory relief. Because the OSLO did not elect a method for transferring the excess reserves, the Secretary began withholding reinsurance claims on September 8, 1988. In response, the OSLO added a request for injunctive relief to its complaint. The OSLC’s complaint alleged that section 1072(e) was unconstitutional because it constituted a taking of private property without just compensation as prohibited by the Fifth Amendment, a violation of the Due Process Clause, and a questioning of the public debt in violation of section four of the Fourteenth Amendment. The district court ruled that the Secretary’s withholding of the reinsurance funds breached the OSLC's contractual rights to the reimbursements. Ohio Student Loan Commission v. Cavazos, 709 F.Supp. 1411 (S.D.Ohio 1988). The court rejected the Secretary’s characterization of the withholding of reimbursement payments as an additional reimbursement fee, noting that past reinsurance fees have been explicitly designated as such by Congress. Id. at 1418. The court concluded that the withholding of funds under section 1072(e) violates the Due Process Clause because abrogating a contract is not a “constitutionally permissible means” to the legitimate end of balancing the budget. Id. at 1419. The court also concluded that the Secretary's repudiation of the contract constitutes an unconstitutional questioning of the public debt under the Fourteenth Amendment because the Secretary is attempting to recover funds that it was obligated to pay to the OSLO. In its denial of the motion for relief from judgment, the district court decided that the OSLO is a “person” entitled to the protection of the Due Process Clause. Id. at 1420-21. Additionally, the court noted that although it “did not address this theory [of taking of private property under the Fifth Amendment] in its original decision, it conclude[d] that this is also a legitimate ground for its decision.” Id. at 1422. The court continued: “Valid contract rights are property which cannot be taken by the federal government without just compensation, even when the aggrieved party is a state governmental entity.” Id. On May 22, 1989, the parties agreed to allow the Attorney General of the State of Michigan to file an amicus curiae brief on behalf of the OSLO. II. The first issue is whether the required transfer of “excess reserves” under section 1072(e)(1) constitutes a taking of property in violation of the Fifth Amendment. Issues of law, decided pursuant to summary judgment, are freely reviewable by this court. Loudermill v. Cleveland Board of Education, 844 F.2d 304, 308 (6th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988). We examine first whether the excess reserves constitute “private property” and then whether there was any taking of that property. A. The OSLO contends that the approximately $26 million in excess reserves that it is required to transfer to the Secretary under section 1072(e) is “private property” under the takings clause. It relies upon United States v. 50 Acres of Land, 469 U.S. 24, 31, 105 S.Ct. 451, 455, 83 L.Ed.2d 376 (1984), in which the Supreme Court stated that the “reference to ‘private property’ in the Takings Clause of the Fifth Amendment [encompasses] the property of state and local government when it is condemned.” The Secretary argues that the excess reserves are not the “private property” of the OSLO for three reasons. First, the OSLO is a federal agent, carrying out the federal wishes in its administration of the GSLP. Second, the Secretary argues that the OSLC does not have free use and enjoyment over the property, and as such, the OSLC is more the custodian than the owner of the funds. Third, the Secretary contends that the OSLC does not have any property rights to the excess reserves because it comes from sources other than the federal reimbursements. In Amen v. City of Dearborn, 718 F.2d 789, 794 (6th Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984), this court noted that “the definition of property is broad, encompassing the entire group of rights incidental to ownership.” While there is a significant amount of federal regulation of the funds, the OSLC still has some of the rights of ownership. The OSLC performs services concerning the initial loans and the recovery of defaults. To this extent, it is incorrect to label the OSLC merely a “federal agent” for funds to flow through. However, there are significant federal limitations upon receipt and use of the funds. In Dayton-Goose Creek Railway v. United States, 268 U.S. 456, 44 S.Ct. 169, 68 L.Ed. 388 (1924), Congress amended the Transportation Act, fixing rates to ensure that the railroad companies did not receive more than a “fair return” on their property. In rejecting a claim by the railroad that the Act was a taking of their property, the Court decided that the excess income was not the “private property” of the railroad because the railroad was simply a trustee of the funds under the Transportation Act. In the instant case, though the OSLC retains some control over the funds, its role is akin to that of a trustee. The OSLC does not “own” the funds under any reasonable definition of that term. It is the administrator of the funds which flow in and out of Ohio as part of the GSLP program. The OSLC is a public entity that is not interested in making any sort of profit in its administration of the program. Instead, it has chosen to join with the federal government to administer the GSLP program, knowing that the funds are ultimately to be disposed of according to the decisions of the federal government. While there may be constitutional limits to the federal government’s transfer of funds from state programs, these limits are not reached in this case. Here, the Secretary is transferring the funds from a federal program with a state administrator, not a state program. Thus, because of the significant federal regulation of the funds, we hold that the excess reserves do not constitute private property. B. Even if the excess reserves were “private property,” in order to violate the Constitution, the private property must be “taken” by the government. In Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25, 106 S.Ct. 1018, 1025-26, 89 L.Ed.2d 166 (1986), an act modifying the terms under which an employer could withdraw from ERISA was challenged. In holding that the act did not constitute a taking of private property, the Supreme Court noted that even though the Act permanently deprived the employers of assets, “[i]n the course of regulating commercial ... affairs, Congress routinely creates burdens for some that directly benefit others,” such as minimum wages and price controls. Id. at 223, 106 S.Ct. at 1025. In order to determine whether there was a taking, the Court established a three-prong test: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; (3) the character of the governmental action. Id. at 225, 106 S.Ct. at 1026 (citations omitted). Upon examination of these three factors, we find that the Secretary’s action did not constitute a “taking” of the excess funds. First, the economic impact of the regulation is clearly to reduce the OSLC’s reserves by approximately $26 million. However, the Connolly Court noted that the severity of the economic impact is the relevant factor; consequently, the Court took into account mitigating provisions in the statute. Id. Similarly, the instant case, section 1072(e)(3) allows the Secretary to waive recovery of the excess reserves upon showing of a financial hardship by the guaranty agency. The OSLC failed to file waiver because it could not show any hardship. Further, there has been no showing in the record that the loss of the excess reserves would harm the operation of the OSLC — -the excess funds were unnecessary extra insurance against future defaults. The second factor, interference with the distinct investment-backed expectations, is also not met in the instant case. The Connolly Court noted that expectations are not great when employers “had more than sufficient notice not only that their plans were currently regulated, but also that withdrawal itself might trigger additional financial obligations.” Id. at 227, 106 S.Ct. at 1027. Similarly, the OSLC was significantly regulated and on notice in the agreements that there might be future regulations or amendments. Furthermore, the OSLC is a non-profit, state governmental agency with no reasonable expectation of keeping its excess reserves. The funds come from the GSLP program, which is operated in conjunction with the federal government. The third factor, the character of the governmental action, is also not met. The Connolly Court noted that under the statute in that case, the government did not permanently appropriate the employer’s assets for its own use, but regulated the participants in the pension plans for the common good. Id. at 225, 106 S.Ct. at 1026. In the instant case, the OSLC argues that the federal government is taking the funds for its own use — to reduce the budget deficit. However, another reason for the transfer exists — to redistribute the funds. The excess funds go to a GSLP loan insurance fund established by 20 U.S.C. § 1081(a). Upon transfer from the guaranty agencies to the GSLP loan insurance fund, the funds could be used more immediately in states with agencies that do not have excess reserves. Accordingly, we conclude that the transfer of funds under section 1072(e) does not take private property without just compensation in violation of the Fifth Amendment. III. The OSLC also argues that the enforcement provisions of the amendments are unconstitutional because they breach the OSLC’s contractual rights to reinsurance payments. The OSLC posits that the abrogation of their contractual rights violates three provisions of the Constitution: the Takings Clause, the Due Process Clause, and section four of the Fourteenth Amendment. A. The district court noted that the contract rights found in 20 U.S.C. § 1078(c) (an agency has “a contractual right against the United States” to reimbursement) are property under Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934). The Secretary responds that there was no abrogation of any “contract” for three reasons. First, the Secretary argues that the OSLC has no contractual right to the excess funds. Since OSLC could have chosen another method of transfer of the funds, the Secretary maintains that OSLC’s voluntary choice of this method cannot be seen as an abrogation of the agreement. Second, the Secretary argues that withholding the funds was in accordance with the agreements. Third, the Secretary argues that section 1072(e) did not abrogate any contract created by section 1078 because the Act allowed for future amendments and changes. We believe that section 1072(e) does not breach any “contract.” In Lynch, Congress passed a statute that abrogated all outstanding insurance contracts in which the federal government had provided War Risk Insurance. In holding that the statute violated the takings clause, the court noted that “[vjalid contracts are property, whether the obligor be a private individual, a municipality, a State, or the United States.” Id. at 579, 54 S.Ct. at 843. We think that the “contract” in the instant case, unlike that in Lynch, does not constitute property under the takings clause. Notably, the statute in Lynch totally repealed the War Risk Insurance Act, while the 1987 Amendments merely altered the terms of the agreements. In addition, the insurance agreements in Lynch were between the federal government and individuals, whereas in the instant case, the agreements are between the Secretary and the OSLO concerning an appropriate way to share governmental authority in the administration of the GSLP. When viewed as a codification of the cooperative relationship between the federal and state agencies, the “contract” between the Secretary and the OSLO does not generate property rights under the takings clause. Even though section 1078 gives the agencies “contractual rights,” they do not rise to the level of property under the Fifth Amendment. Instead, as with a number of other programs that involve the cooperation of the federal and state governments, the federal government has the power to change the terms of the relationship without taking the “property” of the state in violation of the Fifth Amendment. Not only are the agreements not “property” under the Takings Clause, but also there was no abrogation of the contract for two reasons. First, the Agreements allow the Secretary to withhold the reinsurance funds. Specifically, the Agreements provide that if the Secretary finds a failure of the OSLO to abide by federal law or regulations, he may take such action as is necessary to protect the interests of the United States, including “withholding payments to be made to [OSLO].” J.App. at 23, 28. Even if the OSLO has contractual rights under section 1078, the Secretary’s actions do not violate the contract since such action is specifically provided for. Second, and more importantly, the agreement did not foreclose the possibility of future Congressional acts, and as such, the 1987 Amendments were consistent with the agreement. In Bowen v. Public Agencies Against Social Security Entrapment, 477 U.S. 41, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986), the State of California challenged an amendment to the Social Security laws. Previously, if a state obtained Social Security coverage for its employees, the law permitted that state to terminate the agreement providing coverage with two years notice. The amendments prevented the states from terminating these agreements. The State of California maintained that the old law created a “contractual right” that constituted private property under the Takings Clause of the Fifth Amendment. The Supreme Court ruled that the amendments to the act did not violate the Takings Clause because “Congress reserved the authority to amend” the statute and the agreements. Id. at 53, 106 S.Ct. at 2397. The Court noted that unlike Lynch, the Bowen case involved a provision of an act that “was part of a regulatory program over which Congress retained authority to amend in the exercise of its power to provide for the general welfare.” Id. at 55, 106 S.Ct. at 2398. The OSLO attempts to distinguish Bowen by arguing that in Bowen, Congress explicitly preserved the right to amend the act, while in the instant case, Congress “surrendered” the right to alter the “contract” through section 1078’s language giving contractual rights to the OSLO. This distinction is inconsequential. While admittedly Congress did not expressly reserve the right to amend the statute in the future, it did not have to do so in order to preserve the power. The Bowen Court warned that “courts should be extremely reluctant to construe [the statute] in a manner that forecloses Congress’ exercise of authority.” Id. at 52, 106 S.Ct. at 2396. It noted that: [WJithout regard to its source, sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign’s jurisdiction, and will remain intact unless surrendered in unmistakable terms. Therefore, contractual arrangements, including those to which a sovereign itself is a party, ‘remain subject to subsequent legislation’ by the sovereign. Id. (citations omitted). Upon review of the record, we conclude that Congress did not use unmistakable language to surrender its authority to amend. It simply gave a contractual right to the OSLO. Even without any reference in the Act to future amendments, Congress retained the sovereign authority to amend and alter the regulatory scheme without unconstitutionally taking property. In addition, under the reinsurance agreements, the OSLC agreed to be “bound by all changes in the Act or Regulations.” J.App. at 21, 28. These agreements give notice to the OSLC of possible legislative changes. Under the OSLC’s construction of the agreements as a normal contract, this is contractual language reserving to Congress the power to change that contract. That Congress did not expressly reserve the power in the Act is irrelevant under the OSLC’s construction. Thus, we hold that the Secretary did not abrogate any “contractual rights,” but merely altered the contract. B. The district court also ruled that the withholding of the reinsurance funds violates the Due Process Clause of the Fifth Amendment. The court first decided that the Secretary’s characterization of the withholding as a prospective reinsurance fee would violate the equal protection component of the Due Process Clause. 709 F.Supp. at 1418. However, on appeal the Secretary has renounced this characterization. Still remaining is the district court’s determination that the “repudiation by the federal government of a valid contract [as accomplished in section 1072] is a violation of the Due Process Clause of the Fifth Amendment unless necessary for the exercise of the federal police power or other overriding federal interests.” Id. at 1420. Because we earlier concluded that the Secretary did not repudiate the “contract” with the OSLC, the enforcement of the transfer clearly has a rational relationship to the legitimate goals of reducing the deficit and redistributing the funds. Thus, we hold that section 1072 does not violate the Due Process Clause. C. The district court also concluded that the defendant’s repudiation of their contractual obligations constituted a questioning of the public debt, thus violating section four of the Fourteenth Amendment. The court relied upon Perry v. United States, 294 U.S. 330, 351, 55 S.Ct. 432, 435, 79 L.Ed. 912 (1935), in which the Supreme Court ruled that the United States could not repudiate its contractual obligation to purchasers of bonds to redeem their bonds in gold. The Perry Court concluded that the government could not abrogate its contracts in an attempt to “lessen government expenditures,” because it would question the public debt. Id. at 352-53, 55 S.Ct. at 435-36. Again, because we find no abrogation of the “contract” in the instant case, we conclude that there was no violation of section four of the Fourteenth Amendment. IV. Accordingly, the decision of the district court is REVERSED, and REMANDED with instructions to remove the preliminary injunction and to dismiss the complaint. . At the end of its reply brief, the Secretary argues that the takings issue was not properly before the district court because the Tucker Act requires claims for more than $10,000 to go before the Court of Claims. Reply Brief of Appellants at 15. However, the Tucker Act is inapplicable because the OSLO is asking for declaratory and injunctive relief, not monetary damages. 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_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America v. William VASILICK, Appellant. No. 13419. United States Court of Appeals Third Circuit. Argued Feb. 23, 1961. Decided April 26, 1961. Joseph J. Walsh, Scranton, Pa., for appellant. Daniel R. Minnick, Asst. U. S. Atty., Scranton, Pa (Daniel H. Jenkins, U. S. Atty., Scranton, Pa., on the brief), for appellee. Before KALODNER, STALEY and FORMAN, Circuit Judges. PER CURIAM. This is an appeal from the Order of the United States District Court for the Middle District of Pennsylvania denying the petition of appellant, William Vasilick, for a Writ of Error Coram Nobis. The petition filed under 28 U.S.C.A. § 2255 was premised on these grounds: (1) Vasilick was held incommunicado for two weeks prior to trial; (2) court-appointed counsel for Vasilick was denied a request for continuance so that he might have reasonable opportunity to prepare for trial and (3) petitioner was handcuffed in the presence of the jury during his trial. The record discloses that Vasilick was indicted in the Middle District of Pennsylvania on June 2, 1942, together with two other persons, for armed robbery of the First Stroudsburg National Bank, in Pennsylvania, on August 5,1941; he was arraigned on November 4, 1942 at which time the trial court appointed an experienced trial counsel, Joseph J. Walsh, Esq., to represent him; a plea of not guilty was entered; a jury was immediately drawn and the taking of testimony commenced the following day; the jury returned a verdict of guilty and Vasilick was sentenced on November 12, 1942 to serve a term of 25 years which was to run consecutive to a 25-year prison sentence imposed on him on May 29, 1942, following his conviction for another bank robbery in the state of New Jersey. After hearing on January 27,1960, the District Court on August 31, 1960 entered the Order now under review. In an Opinion, which made Findings of Fact and Conclusions of Law, accompanying its Order, the District Court found that the record failed to sustain the contention that Vasilick had been held incommunicado and that it further failed to establish that Vasilick or his counsel had requested the trial court to order a continuance of his trial. It dismissed as irrelevant the ground that Vasilick had been manacled during the trial. The petition in the instant case was filed by Walsh who had served as Vasilick’s court-appointed counsel during his 1942 trial. At the time of oral argument of the instant appeal Walsh urged to this Court that the District Court erred in its fact-finding that he, Walsh, had not requested a continuance of the 1942 trial. In doing so Walsh now states that he had “in substance” made such a request but that it was ignored by the trial court. Walsh frankly admits here that he did not testify in the proceedings in the court below that he had “in substance” made the request for continuance at the trial and states that he did not do so because he was concerned that it might disqualify him as acting as counsel for Vasilick in the pending proceeding. The reason assigned by Walsh for his failure to testify in the District Court with respect to what transpired at the trial is, of course, utterly without merit but the fact remains that the District Court should be afforded opportunity to hear his testimony, which he says he desires to present, on the score of the request for continuance issue. It may be added that the United States Attorney is in accord with the view expressed. It should be said that we find no error in the District Court’s disposition with respect to the other issues presented. For the reasons stated the Order of the District Court will be vacated and the cause remanded to proceed in accordance with this Opinion. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_othadmis	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Robert BARTHOLOMEW, Jr., and Ann Bryant Bartholomew, Plaintiffs-Appellees Cross-Appellants, and Liberty Mutual Insurance Company, Intervenor-Appellee Cross-Appellant, v. CNG PRODUCING COMPANY, Defendant-Appellant Cross-Appellee Appellee. No. 87-4265 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 17, 1987. Wood Brown, III, New Orleans, La., for CNG Producing Co. J.B. Jones, Jr., Cameron, La., Wilford D. Carter, Lake Charles, La., for Bartholomew. Kenny M. Charbonnet, Metairie, La., for Liberty Mut. Ins. Co. Before POLITZ, JOHNSON and HIGGINBOTHAM, Circuit Judges. JOHNSON, Circuit Judge: In this dispute involving the Outer Continental Shelf Lands Act (OCSLA), the defendant CNG Producing Company appeals from the district court’s judgment based upon the jury verdict. By way of cross-appeal, the plaintiffs, Robert Bartholomew, Jr., and Ann Bryant Bartholomew, attack the district court’s award of posijudgment interest at a rate lower than that prescribed by Louisiana law as improper and also assert that the overall award of damages is inadequate. We reject the contentions of both parties and affirm. I. FACTS AND PROCEDURAL HISTORY Plaintiff Robert Bartholomew, Jr., was injured on October 30, 1984, while working as a roughneck on an offshore production platform on the outer Continental Shelf off the Louisiana coast. At all material times, Bartholomew was an employee of Booker Drilling Company. Booker was working as an independent contractor for CNG Producing Company, who owned and operated the offshore platform. Under the contract between CNG and Booker, CNG reserved the right to inspect all work performed on the rig. To exercise this right of inspection, CNG relied primarily on two “company men.” One of these men was E.W. Farrar, Jr., an independent consultant, and the other was J.T. Madison, a salaried full-time employee of CNG. These men were to ensure that drilling operations on the platform were conducted in a safe and efficient manner. At the time of the accident, Bartholomew and the driller, Perry Gill, were setting slips, an operation which involved putting pipe into the well hole. The rig floor on which the men were working was wet and muddy. As a result of the floor’s condition, Bartholomew slipped and twisted his back, sustaining the injuries to his back which form the basis of this lawsuit. In the subsequent jury trial, Bartholomew testified that the reason the rig floor was wet and muddy was because the CNG “company man,” J.T. Madison, whom Bartholomew referred to as “Mad Dog,” had instructed the driller, Gill, not to stop the drilling operation to wash off the floor, but to do so afterwards. Ultimately, the jury determined that CNG was negligent, finding CNG to be thirty percent at fault for Bartholomew’s injuries. We note at this time that CNG failed to move for a directed verdict or a judgment notwithstanding the verdict. Additionally, the jury awarded $325,000 for damages suffered by Bartholomew as a result of the accident and $5,000 to Ann Bartholomew for her loss of consortium and services. The district court also awarded the Bartholomews prejudgment interest at the rate of twelve percent per annum from the date of judicial demand until entry of the judgment and awarded interest thereafter at the rate prescribed by 28 U.S.C. § 1961 until payment of the judgment by CNG. Both parties appeal the district court’s judgment. II. DISCUSSION A. The OCSLA Bartholomew was injured on an offshore fixed platform located on the outer Continental Shelf off the coast of Louisiana. The Outer Continental Shelf Lands Act (OCSLA) provides that federal jurisdiction extends to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, ..., to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: .... 43 U.S.C. § 1333(a)(1) (emphasis added). Both parties in the instant case attempt to characterize the jurisdictional basis of this lawsuit as one premised on diversity of citizenship pursuant to 28 U.S.C. § 1332. This characterization is incorrect. Since the accident occurred on an offshore platform located on the outer Continental Shelf, the appropriate basis of jurisdiction for this claim is the OCSLA; therefore, the applicable law in the instant case is defined by the OCSLA as follows: To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent state, ... are hereby declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf,.... 43 U.S.C. § 1333(a)(2)(A). Interpreting the above provision, the Supreme Court, in Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), stated that the law to be applied in actions governed by the OCSLA is “federal law, supplemented by state law of the adjacent state,....” Id. at 355, 89 S.Ct. at 1837. Thus, the Act mandates that we technically apply federal law to the instant case, but also apply the law of the adjacent state, Louisiana, as surrogate federal law to the extent that it is not inconsistent with federal laws and regulations. Having determined the applicable law, we next turn to the merits of the parties’ contentions on appeal. B. The Liability of CNG The Bartholomews brought this negligence suit against CNG, asserting that CNG was negligent (1) in ordering Bartholomew’s employer, Booker, to engage in an unsafe work practice and (2) in contracting with Booker for an inadequate number of floor hands to operate the equipment safely. In defense, CNG argues that as a principal which exercised no operational control over its independent contractor, Booker, CNG was insulated from liability in this case. Because we find that some evidence exists to support a finding by the jury that CNG expressly authorized an unsafe work practice on the platform, we reject CNG’s arguments and affirm the district court’s judgment without addressing the claim that CNG was negligent in failing to contract for adequate personnel. It is well established that a principal is not liable for the activities of an independent contractor committed in the course of performing its duties under the contract. Hawkins v. Evans Cooperage Co., 766 F.2d 904, 906 (5th Cir.1985); Wallace v. Oceaneering Int’l, 727 F.2d 427, 437 (5th Cir.1984); Moser v. Texas Trailer Corp., 623 F.2d 1006, 1014-15 (5th Cir.1980). However, two notable exceptions exist to this general rule. First, a principal may not escape liability arising out of ultrahaz-ardous activities which are contracted out to an independent contractor. Second, and of importance to the instant case, a principal is liable for the acts of an independent contractor if he exercises operational control over those acts or expressly or impliedly authorizes an unsafe practice. Hawkins, 766 F.2d at 906; Wallace, 727 F.2d at 437; Williams v. Gervais F. Favrot Co., 499 So.2d 623, 625 (La.App.1986), writ denied, 503 So.2d 19 (La.1987); Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604, 606-07 (La.App.1978), writ denied, 366 So.2d 575 (La.1979). Where an available safe method, which includes the taking of adequate precautions, will render it at least ordinarily safe, and the work is done in an unsafe manner, the employer will be liable if he has expressly or impliedly authorized the particular manner which will render the work unsafe, and not otherwise. Ewell, 364 So.2d at 607 (quoting Perkow-ski, The Employer and the Torts of His Independent Contractor in Louisiana, 21 TuLL.Rev. 619, 627 (1947)). Having set forth the general rule and its exceptions, we must now determine the appropriate standard of review to utilize in reviewing the jury’s findings. As previously noted, CNG failed to move for a directed verdict or a judgment notwithstanding the verdict at the trial level. This Court has consistently held that it will not review the sufficiency of the evidence supporting a jury finding in the absence of a directed verdict or motion for judgment notwithstanding the verdict. Smith v. Trans-World Drilling Co., 772 F.2d 157, 160 (5th Cir.1985); Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1024 (5th Cir.1979); Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978); Fugitt v. Jones, 549 F.2d 1001, 1004 (5th Cir.1977). Accordingly, our evidentiary inquiry is limited to whether there was 11 any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a ‘manifest miscarriage of justice.’ ” Coughlin, 571 F.2d at 297 (emphasis in original). In finding that the appropriate standard of review is whether there was any evidence to support the jury’s finding, we reject CNG’s assertion that it was entitled to judgment as a matter of law. The jury expressly found that CNG’s negligence was a cause in fact of the injury suffered by Bartholomew on the offshore platform. Thus, the inquiry becomes whether there was any evidence that CNG exercised operational control over its independent contractor, Booker, or expressly or impliedly authorized the unsafe practice which caused Bartholomew’s injuries. Bartholomew testified at trial that the company man, J.T. Madison, expressly told the driller, Perry Gill, not to wash the rig floor until after the operation was completed. Bartholomew also testified that the driller was fearful for his job. As a floor hand, Bartholomew took his orders directly from the driller. Bartholomew’s testimony was not directly contradicted by any of CNG’s witnesses. In fact, the Booker tool pusher testified that he had heard of some company men ordering the driller to speed up the operations and not to wash down the rig. Emmett Farrar, the other company man for CNG, who was independently employed, testified that he did not know whether or not Madison had ever issued such an order to the driller. Thus, the question was one of Bartholomew’s credibility. The jury was entitled to make that credibility determination and did so. On the record before us, we conclude that some evidence supported a finding by the jury that CNG, through its representative on the rig, J.T. Madison, expressly authorized the unsafe practice of failing to wash down the rig floor which eventually caused Bartholomew’s accident. It is submitted by CNG that because Madison possibly gave his order not to wash down the floor two days prior to the accident, CNG was not exercising operational control at the time of the accident and therefore was not liable. Without determining who the company man was at the time of the accident, we conclude that whether Madison was on duty at the time of the accident or whether he gave the order two days prior to the accident is not dispositive. An employee does not stop obeying his employer’s orders merely because the employer is no longer present. It is not unrealistic to expect the driller, as well as the floor hands, to continue to conduct operations without washing down the floor, in light of Madison’s previous order to do so. Since there was some evidence to support a finding by the jury that CNG expressly authorized an unsafe work practice, we affirm the district court’s judgment. C. Prejudgment Interest We next address the Bartholomews’ claim that the district court erred in not awarding postjudgment interest at a rate of twelve percent, as provided by La.Rev. Stat. § 13:4203. The district court awarded postjudgment interest, but at the rate prescribed by 28 U.S.C. § 1961(a) and (b). Unfortunately, in making this claim, the Bartholomews continue to labor under the mistaken perception that federal court jurisdiction in this case is based on diversity of citizenship. Relying on this mistaken belief, the Bartholomews insist that the substantive law of Louisiana should apply in the instant case; therefore, the Louisiana rate of interest should apply to both prejudgment and postjudgment interest. However, as we noted earlier, the OCS-LA is the appropriate jurisdictional basis for the Bartholomews’ claim. Therefore, Louisiana law only applies to the extent that it is not inconsistent with federal laws and regulations. In the instant case, the district court awarded postjudgment interest at the rate prescribed by 28 U.S.C. § 1961, the federal statute which governs awards of postjudgment interest. Since Louisiana law provides for prejudgment interest as a substantive right, the district court also awarded interest to the Bartholomews from the date of judicial demand until the entry of judgment at a rate of twelve percent as prescribed by Louisiana law. This Court has repeatedly recognized that 28 U.S.C. § 1961 does not prohibit an award by the district court of prejudgment interest pursuant to La.Rev. Stat. § 13:4203 in an OCSLA case. Haas v. Atlantic Richfield, 799 F.2d 1011, 1018 (5th Cir.1986); Frederick v. Mobil Oil Corp., 765 F.2d 442, 449 (5th Cir.1985); Smith v. Shell Oil Co., 746 F.2d 1087, 1097 (5th Cir.1984); Olsen v. Shell Oil Co., 708 F.2d 976, 984 (5th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). However, our prior decisions do not permit district courts to supplant federal statutes with state law. If we were to accept the plaintiffs’ arguments that Louisiana law should apply to both prejudgment and postjudgment interest in the instant case, we would be applying a state statute to an area already specifically covered by federal law. Such a holding would be in direct conflict with the statutory mandate of the OCSLA. We, therefore, conclude that the district court’s award of prejudgment interest at the rate specified by Louisiana law (twelve percent), and the award of postjudgment interest at the rate specified by federal law was not improper. D. Inadequacy of Damages Finally, the Bartholomews assert that the damage award of the jury was inadequate. In the instant case, the jury awarded the Bartholomews $325,000 for the damages Robert Bartholomew suffered as a result of his accident and $5,000 to Ann Bartholomew for her loss of consortium and services. “This Court will overturn a jury verdict for inadequacy only upon the strongest of showings.” Thezan v. Maritime Overseas Corp., 708 F.2d 175, 182 (5th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). In reviewing the damage award, this Court is limited to determining whether the trier of fact abused its discretion. Hawkes v. Ayers, 537 F.2d 836, 837 (5th Cir.1976). Moreover, damage awards will only be overturned in exceptional cases where such awards are so gross as to be contrary to right reason. Thezan, 708 F.2d at 182 (quoting Bailey v. Southern Pacific Transp. Co., 613 F.2d 1385, 1390 (5th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980)). The Bartholomews contend that the jury verdict was inadequate when considered in light of the testimony of their economic expert who propounded that Bartholomew’s estimated economic loss from his accident would be anywhere between $473,162.87 and $614,314.72. Additionally, the Bartholomews assert that the minimum general damage award for this type of claim is $200,000. In Haas v. Atlantic Richfield, this Court explained the function of the testimony of economic experts regarding damages. Haas claims the award for lost wages is grossly inadequate in light of the testimony of his economics expert. The expert calculated Haas’ past lost wages to be $61,605,000 and his future loss of earnings to be $422,076,000. Calculations such as these are only a suggested guideline for a jury. 799 F.2d at 1017 (emphasis added). In Haas, the Court concluded that the jury was free to consider evidence of higher discount rates, the plaintiff’s ability to mitigate damages, and factors which may have prevented the plaintiff from obtaining employment in the future. Id. Similarly, the testimony of the economic expert in the instant case was only a suggested guideline for the jury. The facts and figures of the economic expert were based on predictions as to future economic trends and salary increases of oil field employees in the future. The jury was free to accept or reject those predictions as it saw fit. Additionally, the jury could properly consider Bartholomew’s ability to return to the workforce in the future. We do not believe that the award of $325,000 was so gross as to be contrary to right reason. Therefore, we reject Bartholomew’s contentions. III. CONCLUSION In sum, we conclude that there was some evidence that CNG expressly authorized the unsafe practice of failing to wash down the rig floor until after operations were completed. Additionally, the district court did not err in awarding prejudgment interest at a rate set by Louisiana law and postjudgment interest at a rate set by federal law. The district court’s hybrid award based on federal and state law was exactly the type of application of the OCSLA contemplated by its drafters. Finally, we cannot say that the jury award of $325,000 was so inadequate as to amount to an abuse of discretion on the part of the trier of fact. The judgment of the district court is therefore AFFIRMED. . Since Booker was insured by Liberty Mutual Insurance Company for liability to its employees, Liberty Mutual intervened in the instant lawsuit to recoup compensation paid to Bartholomew as a result of the injuries which he suffered due to his accident. . Present appellate counsel were not trial counsel. . 28 U.S.C. § 1961 provides for postjudgment interest at a rate lower than that mandated by Louisiana law. Section 1961(a) provides: ... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges. In any event, we do not decide whether § 1961 applies in diversity suits. Compare Budge v. Post, 643 F.2d 372 (1981 5th Cir.) and G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526 (11th Cir.1985). Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
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. PERRY v. NEW HAMPSHIRE No. 10-8974. Argued November 2, 2011 Decided January 11, 2012 Richard Guerriero argued the cause for petitioner. With him on the briefs were David M. Rothstein, Christopher Johnson, and Heather Ward. Michael A. Delaney, Attorney General of New Hampshire, argued the cause for respondent. With him on the brief were Stephen D. Fuller, Senior Assistant Attorney General, Thomas E. Bocian, Assistant Attorney General, and Susan P. McGinnis, Senior Assistant Attorney General. Nicole A. Saharsky argued the cause for the United States as amicus curiae in support of respondent. With her on the brief were Solicitor General Verrilli, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and Joel M. Gershowitz. Briefs of amici curiae urging reversal were filed for the American Psychological Association by David W. Ogden, Daniel S. Volchok, Fran-cesco Valentini, and Nathalie F. P. Gilfoyle; and for the Innocence Network by Timothy P. O’Toole and Jeffrey Hahn. A brief of amicus curiae urging vacation was filed for the National Association of Criminal Defense Lawyers by Mark D. Harris and David M. Porter. Briefs of amici curiae urging affirmance were filed for the State of Louisiana et al. by James D. “Buddy” Caldwell, Attorney General of Louisiana, S. Kyle Duncan, and Ross W. Bergethon, Assistant Attorney General, by Kevin T. Kane, Chief State’s Attorney of Connecticut, and Leonardo M. Ra-padas, Attorney General of Guam, and by the Attorneys General for their respective States as follows: Lather Strange of Alabama, Tom Horne of Arizona, John W. Suthers of Colorado, Joseph R. Biden III of Delaware, Pamela Jo Bondi of Florida, Samuel S. Olens of Georgia, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Derek Schmidt of Kansas, Jack Conway of Kentucky, William Schneider of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Bill Schuette of Michigan, Jon Bruning of Nebraska, Catherine Cortez Masto of Nevada, Paula T. Dow of New Jersey, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, E. Scott Pruitt of Oklahoma, John R. Kroger of Oregon, Peter F. Kilmartin of Rhode Island, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Mark L. Shurtleff of Utah, J. B. Van Hollen of Wisconsin, and Gregory A. Phillips of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the National District Attorneys Association by Thomas R. McCarthy and William S. Consovoy. Steven A. Reiss and Gregory Silbert filed a brief for Wilton Dedge et al. as amici curiae. Justice Ginsburg delivered the opinion of the Court. In our system of justice, fair trial for persons charged with criminal offenses is secured by the Sixth Amendment, which guarantees to defendants the right to counsel, compulsory-process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution. Those safeguards apart, admission of evidence in state trials is ordinarily governed by state law, and the reliability of relevant testimony typically falls within the province of the jury to determine. This Court has recognized, in addition, a due process check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime. An identification infected by improper police influence, our case law holds, is not automatically excluded. Instead, the trial judge must screen the evidence for reliability pretrial. If there is “a very substantial likelihood of irreparable mis-identification,” Simmons v. United States, 390 U. S. 377, 384 (1968), the judge must disallow presentation of the evidence at trial. But if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth. We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice. Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example, at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt. I A Around 3 a.m. on August 15, 2008, Joffre Ullon called the Nashua, New Hampshire, Police Department and reported that an African-American male was trying to break into cars parked in the lot of Ullon’s apartment building. Officer Nicole Clay responded to the call. Upon arriving at the parking lot, Clay heard what “sounded like a metal bat hitting the ground.” App. 37a-38a. She then saw petitioner Ba-rion Perry standing between two cars. Perry walked toward Clay, holding two car-stereo amplifiers in his hands. A metal bat lay on the ground behind him. Clay asked Perry where the amplifiers came from. “[I] found them on the ground,” Perry responded. Id., at 39a. Meanwhile, Ullon’s wife, Nubia Blandón, woke her neighbor, Alex Clavijo, and told him she had just seen someone break into his car. Clavijo immediately went downstairs to the parking lot to inspect the car. He first observed that one of the rear windows had been shattered. On further inspection, he discovered that the speakers and amplifiers from his car stereo were missing, as were his bat and wrench. Clavijo then approached Clay and told her about Blandon’s alert and his own subsequent observations. By this time, another officer had arrived at the scene. Clay asked Perry to stay in the parking lot with that officer, while she and Clavijo went to talk to Blandón. Clay and Clavijo then entered the apartment building and took the stairs to the fourth floor, where Blandon’s and Clavijo’s apartments were located. They met Blandón in the hallway just outside the open door to her apartment. Asked to describe what she had seen, Blandón stated that, around 2:30 a.m., she saw from her kitchen window a tall, African-American man roaming the parking lot and looking into cars. Eventually, the man circled Clavijo’s car, opened the trunk, and removed a large box. Clay asked Blandón for a more specific description of the man. Blandón pointed to her kitchen window and said the person she saw breaking into Clavijo’s car was standing in the parking lot, next to the police officer. Perry’s arrest followed this identification. About a month later, the police showed Blandón a photographic array that included a picture of Perry and asked her to point out the man who had broken into Clavijo’s ear. Blandón was unable to identify Perry. B Perry was charged in New Hampshire state court with one count of theft by unauthorized taking and one count of criminal mischief. Before trial, he moved to suppress Blandon’s identification on the ground that admitting it at trial would violate due process. Blandón witnessed what amounted to a one-person showup in the parking lot, Perry asserted, which all but guaranteed that she would identify him as the culprit. Id., at 15a-16a. The New Hampshire Superior Court denied the motion. Id., at 82a-88a. To determine whether due process prohibits the introduction of an out-of-court identification at trial, the Superior Court said, this Court’s decisions instruct a two-step inquiry. First, the trial court must decide whether the police used an unnecessarily suggestive identification procedure. Id., at 85a. If they did, the court must next consider whether the improper identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible. Ibid, (citing Neil v. Biggers, 409 U. S. 188 (1972), and Manson v. Brathwaite, 432 U. S. 98 (1977)). Perry’s challenge, the Superior Court concluded, failed at step one: Blandon’s identification of Perry on the night of the crime did not result from an unnecessarily suggestive procedure “manufaeture[d]... by the police.” App. 86a-87a. Blandón pointed to Perry “spontaneously,” the court noted, “without any inducement from the police.” Id., at 85a-86a. Clay did not ask Blandón whether the man standing in the parking lot was the man Blandón had seen breaking into Clavijo’s car. Ibid. Nor did Clay ask Blandón to move to the window from which she had observed the break-in. Id., at 86a. The Superior Court recognized that there were reasons to question the accuracy of Blandon’s identification: The parking lot was dark in some locations; Perry was standing next to a police officer; Perry was the only African-American man in the vicinity; and Blandón was unable, later, to pick Perry out of a photographic array. Id., at 86a-87a. But “[because the police procedures were not unnecessarily suggestive,” the court ruled that the reliability of Blandon’s testimony was for the jury to consider. Id., at 87a. At the ensuing trial, Blandón and Clay testified to Bland-on’s out-of-court identification. The jury found Perry guilty of theft and not guilty of criminal mischief. On appeal, Perry repeated his challenge to the admissibility of Blandon’s out-of-court identification. The trial court erred, Perry contended, in requiring an initial showing that the police arranged the suggestive identification procedure. Suggestive circumstances alone, Perry argued, suffice to trigger the court’s duty to evaluate the reliability of the resulting identification before allowing presentation of the evidence to the jury. The New Hampshire Supreme Court rejected Perry’s argument and affirmed his conviction. Id., at 9a-lla. Only where the police employ suggestive identification techniques, that court held, does the Due Process Clause require a trial court to assess the reliability of identification evidence before permitting a jury to consider it. Id., at 10a-lla. We granted certiorari to resolve a division of opinion on the question whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police. 563 U. S. 1020 (2011). I — { A The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit. Constitutional safeguards available to defendants to counter the State’s evidence include the Sixth Amendment rights to counsel, Gideon v. Wainwright, 372 U. S. 335,343-345 (1963); compulsory process, Taylor v. Illinois, 484 U. S. 400, 408-409 (1988); and confrontation plus cross-examination of witnesses, Delaware v. Fensterer, 474 U. S. 15,18-20 (1985) (per curiam). Apart from these guarantees, we have recognized, state and federal statutes and rules ordinarily govern the admissibility of evidence, and juries are assigned the task of determining the reliability of the evidence presented at trial. See Kansas v. Ventris, 556 U. S. 586, 594, n. (2009) (“Our legal system... is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses.”). Only when evidence “is so extremely unfair that its admission violates fundamental conceptions of justice,” Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e. g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s “knowin[g] use [of] false evidence,” because such use violates “any concept of ordered liberty.”). Contending that the Due Process Clause is implicated here, Perry relies on a series of decisions involving police-arranged identification procedures. In Stovall v. Denno, 388 U. S. 293 (1967), first of those decisions, a witness identified the defendant as her assailant after police officers brought the defendant to the witness’ hospital room. Id., at 295. At the time the witness made the identification, the defendant— the only African-American in the room — was handcuffed and surrounded by police officers. Ibid. Although the police-arranged showup was undeniably suggestive, the Court held that no due process violation occurred. Id., at 302. Crucial to the Court’s decision was the procedure’s necessity: The witness was the only person who could identify or exonerate the defendant; the witness could not leave her hospital room; and it was uncertain whether she would live to identify the defendant in more neutral circumstances. Ibid. A year later, in Simmons v. United States, 390 U. S. 377 (1968), the Court addressed a due process challenge to police use of a photographic array. When a witness identifies the defendant in a police-organized photo lineup, the Court ruled, the identification should be suppressed only where “the photographic identification procedure was so [unnecessarily] suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Id., at 384-385. Satisfied that the photo array used by Federal Bureau of Investigation agents in Simmons was both necessary and unlikely to have led to a mistaken identification, the Court rejected the defendant’s due process challenge to admission of the identification. Id., at 385-386. In contrast, the Court held in Foster v. California, 394 U. S. 440 (1969), that due process required the exclusion of an eyewitness identification obtained through police-arranged procedures that “made it all but inevitable that [the witness] would identify [the defendant].” Id., at 443. Synthesizing previous decisions, we set forth in Neil v. Biggers, 409 U. S. 188 (1972), and reiterated in Manson v. Brathwaite, 432 U. S. 98 (1977), the approach appropriately used to determine whether the Due Process Clause requires suppression of an eyewitness identification tainted by police arrangement. The Court emphasized, first, that due process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. Id., at 107,109; Biggers, 409 U. S., at 198. Even when the police use such a procedure, the Court next said, suppression of the resulting identification is not the inevitable consequence. Brathwaite, 432 U. S., at 112-113; Biggers, 409 U. S., at 198-199. A rule requiring automatic exclusion, the Court reasoned, would “g[o] too far,” for it would “kee[p] evidence from the jury that is reliable and relevant,” and “may result, on occasion, in the guilty going free.” Brathwaite, 432 U. S., at 112; see id., at 113 (when an “identification is reliable despite an unnecessarily suggestive [police] identification procedure,” automatic exclusion “is a Draconian sanction,” one “that may frustrate rather than promote justice”). Instead of mandating a per se exclusionary rule, the Court held that the Due Process Clause requires courts to assess, on a case-by-case basis, whether improper police conduct created a “substantial likelihood of misidentification.” Biggers, 409 U. S., at 201; see Brathwaite, 432 U. S., at 116. “[R]elia-bility [of the eyewitness identification] is the linchpin” of that evaluation, the Court stated in Brathwaite. Id., at 114. Where the “indicators of [a witness’] ability to make an accurate identification” are “outweighed by the corrupting effect” of law enforcement suggestion, the identification should be suppressed. Id., at 114, 116. Otherwise, the evidence (if admissible in all other respects) should be submitted to the jury. Applying this “totality of the circumstances” approach, id., at 110, the Court held in Biggers that law enforcement’s use of an unnecessarily suggestive showup did not require suppression of the victim’s identification of her assailant. 409 U. S., at 199-200. Notwithstanding the improper procedure, the victim’s identification was reliable: She saw her assailant for a considerable period of time under adequate light, provided police with a detailed description of her attacker long before the showup, and had “no doubt” that the defendant was the person she had seen. Id., at 200 (internal quotation marks omitted). Similarly, the Court concluded in Brath-waite that police use of an unnecessarily suggestive photo array did not require exclusion of the resulting identification. 432 U. S., at 114-117. The witness, an undercover police officer, viewed the defendant in good light for several minutes, provided a thorough description of the suspect, and was certain of his identification. Id., at 115. Hence, the “indicators of [the witness’] ability to make an accurate identification [were] hardly outweighed by the corrupting effect of the challenged identification.” Id., at 116. B Perry concedes that, in contrast to every case in the Sto-vall line, law enforcement officials did not arrange the suggestive circumstances surrounding Blandon’s identification. See Brief for Petitioner 34; Tr. of Oral Arg. 5 (counsel for Perry) (“[W]e do not allege any manipulation or intentional orchestration by the police.”). He contends, however, that it was mere happenstance that each of the Stovall cases involved improper police action. The rationale underlying our decisions, Perry asserts, supports a rule requiring trial judges to prescreen eyewitness evidence for reliability any time an identification is made under suggestive circumstances. We disagree. Perry’s argument depends, in large part, on the Court’s statement in Brathwaite that “reliability is the linchpin in determining the admissibility of identification testimony.” 432 U. S., at 114. If reliability is the linchpin of admissibility under the Due Process Clause, Perry maintains, it should make no difference whether law enforcement was responsible for creating the suggestive circumstances that marred the identification. Perry has removed our statement in Brathwaite from its mooring, and thereby attributes to the statement a meaning a fair reading of our opinion does not bear. As just explained, supra, at 238-239, the Brathwaite Court’s reference to reliability appears in a portion of the opinion concerning the appropriate remedy when the police use an unnecessarily suggestive identification procedure. The Court adopted a judicial screen for reliability as a course preferable to a per se rule requiring exclusion of identification evidence whenever law enforcement officers employ an improper procedure. The due process check for reliability, Brathwaite made plain, comes into play only after the defendant establishes improper police conduct. The very purpose of the check, the Court noted, was to avoid depriving the jury of identification evidence that is reliable, notwithstanding improper police conduct. 432 U. S., at 112-113. Perry’s contention that improper police action was not essential to the reliability check Brathwaite required is echoed by the dissent. Post, at 252. Both ignore a key premise of the Brathwaite decision: A primary aim of excluding identification evidence obtained under unnecessarily suggestive circumstances, the Court said, is to deter law enforcement use of improper lineups, showups, and photo arrays in the first place. See 432 U. S., at 112. Alerted to the prospect that identification evidence improperly obtained may be excluded, the Court reasoned, police officers will “guard against unnecessarily suggestive procedures.” Ibid. This deterrence rationale is inapposite in cases, like Perry’s, in which the police engaged in no improper conduct. Coleman v. Alabama, 399 U. S. 1 (1970), another decision in the Stovall line, similarly shows that the Court has linked the due process check, not to suspicion of eyewitness testimony generally, but only to improper police arrangement of the circumstances surrounding an identification. The defendants in Coleman contended that a witness’ in-court identifications violated due process, because a pretrial station-house lineup was “so unduly prejudicial and conducive to irreparable misidentification as fatally to taint [the later identifications].” 399 U. S., at 3 (plurality opinion). The Court rejected this argument. Id., at 5-6 (plurality opinion), 13-14 (Black, J., concurring), 22, n. 2 (Burger, C. J., dissenting), 28, n. 2 (Stewart, J., dissenting). No due process violation occurred, the plurality explained, because nothing “the police said or did prompted [the witness’] virtually spontaneous identification of [the defendants].” Id., at 6. True, Coleman was the only person in the lineup wearing a hat, the plurality noted, but “nothing in the record show[ed] that he was required to do so.” Ibid. See also Colorado v. Con-nelly, 479 U. S. 157, 163, 167 (1986) (Where the “crucial element of police overreaching” is missing, the admissibility of an allegedly unreliable confession is “a matter to be governed by the evidentiary laws of the forum,... and not by the Due Process Clause.”). Perry and the dissent place significant weight on United States v. Wade, 388 U. S. 218 (1967), describing it as a decision not anchored to improper police conduct. See Brief for Petitioner 12,15,21-22,28; post, at 250-253,256-258. In fact, the risk of police rigging was the very danger to which the Court responded in Wade when it recognized a defendant’s right to counsel at postindictment, police-organized identification procedures. 388 U. S., at 233, 235-236. “[T]he confrontation compelled by the State between the accused and the victim or witnesses,” the Court began, “is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.” Id., at 228 (emphasis added). “A major factor contributing to the high incidence of miscarriage of justice from mistaken identification,” the Court continued, “has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification.” Ibid, (emphasis added). To illustrate the improper suggestion it was concerned about, the Court pointed to police-designed lineups where “all in the lineup but the suspect were known to the identifying witness,... the other participants in [the] lineup were grossly dissimilar in appearance to the suspect,... only the suspect was required to wear distinctive clothing which the culprit allegedly wore,... the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail,... the suspect is pointed out before or during a lineup,... the participants in the lineup are asked to try on an article of clothing which fits only the suspect.” Id., at 233. Beyond genuine debate, then, prevention of unfair police practices prompted the Court to extend a defendant’s right to counsel to cover postindictment lineups and showups. Id., at 235. Perry’s argument, reiterated by the dissent, thus lacks support in the case law he cites. Moreover, his position would open the door to judicial preview, under the banner of due process, of most, if not all, eyewitness identifications. External suggestion is hardly the only factor that casts doubt on the trustworthiness of an eyewitness’ testimony. As one of Perry’s amici points out, many other factors bear on “the likelihood of misidentification,” posi, at 258 — for example, the passage of time between exposure to and identification of the defendant, whether the witness was under stress when he first encountered the suspect, how much time the witness had to observe the suspect, how far the witness was from the suspect, whether the suspect carried a weapon, and the race of the suspect and the witness. Brief for American Psychological Association as Amicus Curiae 9-12. There is no reason why an identification made by an eyewitness with poor vision, for example, or one who harbors a grudge against the defendant, should be regarded as inherently more reliable, less of a “threat to the fairness of trial,” post, at 262, than the identification Blandón made in this case. To embrace Perry’s view would thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence. Perry maintains that the Court can limit the due process check he proposes to identifications made under “suggestive circumstances.” Tr. of Oral Arg. 11-14. Even if we could rationally distinguish suggestiveness from other factors bearing on the reliability of eyewitness evidence, Perry’s limitation would still involve trial courts, routinely, in preliminary examinations. Most eyewitness identifications involve some element of suggestion. Indeed, all in-court identifications do. Out-of-court identifications volunteered by witnesses are also likely to involve suggestive circumstances. For example, suppose a witness identifies the defendant to police officers after seeing a photograph of the defendant in the press captioned “theft suspect,” or hearing a radio report implicating the defendant in the crime. Or suppose the witness knew that the defendant ran with the wrong crowd and saw him on the day and in the vicinity of the crime. Any of these circumstances might have “suggested” to the witness that the defendant was the person the witness observed committing the crime. C In urging a broadly applicable due process check on eyewitness identifications, Perry maintains that eyewitness identifications are a uniquely unreliable form of evidence. See Brief for Petitioner 17-22 (citing studies showing that eyewitness misidentifications are the leading cause of wrongful convictions); Brief for American Psychological Association as Amicus Curiae 14-17 (describing research indicating that as many as one in three eyewitness identifications is inaccurate). See also post, at 262-265. We do not doubt either the importance or the fallibility of eyewitness identifications. Indeed, in recognizing that defendants have a constitutional right to counsel at postindictment police lineups, we observed that “the annals of criminal law are rife with instances of mistaken identification.” Wade, 388 U. S., at 228. We have concluded in other contexts, however, that the potential unreliability of a type of evidence does not alone render its introduction at the defendant’s trial fundamentally unfair. See, e. g., Ventris, 556 U. S., at 594, n. (declining to “craft a broa[d] exclusionary rule for uncorroborated statements obtained [from jailhouse snitches],” even though “rewarded informant testimony” may be inherently untrustworthy); Dowling, 493 U. S., at 353 (rejecting argument that the introduction of evidence concerning acquitted conduct is fundamentally unfair because such evidence is “inherently unreliable”). We reach a similar conclusion here: The fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness. Our unwillingness to enlarge the domain of due process as Perry and the dissent urge rests, in large part, on our recognition that the jury, not the judge, traditionally determines the reliability of evidence. See supra, at 237. We also take account of other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability. These protections include the defendant’s Sixth Amendment right to confront the eyewitness. See Maryland v. Craig, 497 U. S. 836, 845 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant.”)- Another is the defendant’s right to the effective assistance of an attorney, who can expose the flaws in the eyewitness’ testimony during cross-examination and focus the jury’s attention on the fallibility of such testimony during opening and closing arguments. Eyewitness-specific jury instructions, which many federal and state courts have adopted, likewise warn the jury to take care in appraising identification evidence. See, e. g., United States v. Telfaire, 469 F. 2d 652, 558-559 (CADC 1972) (per curiam) (D. C. Circuit Model Jury Instructions) (“If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.”). See also Ventris, 556 U. S., at 594, n. (citing jury instructions that informed jurors about the unreliability of uncorroborated jailhouse-informant testimony as a reason to resist a ban on such testimony); Dowling, 493 U. S., at 352-353. The constitutional requirement that the government prove the defendant’s guilt beyond a reasonable doubt also impedes convictions based on dubious identification evidence. State and Federal Rules of Evidence, moreover, permit trial judges to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial impact or potential for misleading the jury. See, e. g., Fed. Rule Evid. 403; N. H. Rule Evid. 403 (2011). See also Tr. of Oral Arg. 19-22 (inquiring whether the standard Perry seeks differs materially from the one set out in Rule 403). In appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence. See, e. g., State v. Clopten, 2009 UT 84, ¶33, 223 P. 3d 1103,1113 (“We expect... that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony [on the dangers of such evidence].”). Many of the safeguards just noted were at work at Perry’s trial. During her opening statement, Perry’s court-appointed attorney cautioned the jury about the vulnerability of Blandon’s identification. App. 115a (Blandón, “the eyewitness that the State needs you to believe[,] can’t pick [Perry] out of a photo array. How carefully did she really see what was going on?... How well could she really see him?”). While cross-examining Blandón and Officer Clay, Perry’s attorney constantly brought up the weaknesses of Blandon’s identification. She highlighted: (1) the significant distance between Blandon’s window and the parking lot, id., at 226a; (2) the lateness of the hour, id., at 225a; (3) the van that partly obstructed Blandon’s view, id., at 226a; (4) Bland-on’s concession that she was “so scared [she] really didn’t pay attention” to what Perry was wearing, id., at 233a; (5) Blandon’s inability to describe Perry’s facial features or other identifying marks, id., at 205a, 233a-235a; (6) Blandon’s failure to pick Perry out of a photo array, id., at 235a; and (7) Perry’s position next to a uniformed, gun-bearing police officer at the moment Blandón made her identification, id., at 202a-205a. Perry’s counsel reminded the jury of these frailties during her summation. Id., at 374a-375a (Blandón “wasn’t able to tell you much about who she saw.... She couldn’t pick [Perry] out of a lineup, out of a photo array [Blandón said] [t]hat guy that was with the police officer, that’s who was circling. Again, think about the context with the guns, the uniforms. Powerful, powerful context clues.”). After closing arguments, the trial court read the jury a lengthy instruction on identification testimony and the factors the jury should consider when evaluating it. Id., at 399a-401a. The court also instructed the jury that the defendant’s guilt must be proved beyond a reasonable doubt, id., at 390a, 392a, 395a-396a, and specifically cautioned that “one of the things the State must prove [beyond a reasonable doubt] is the identification of the defendant as the person who committed the offense,” id., at 398a-399a. Given the safeguards generally applicable in criminal trials, protections availed of by the defense in Perry’s case, we hold that the introduction of Blandon's eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry’s trial fundamentally unfair. * ⅜ * • For the foregoing reasons, we agree with the New Hampshire courts’ appraisal of our decisions. See supra, at 235-236. Finding no convincing reason to alter our precedent, we hold that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. Accordingly, the judgment of the New Hampshire Supreme Court is Affirmed. The dissent, too, appears to urge that all suggestive circumstances raise due process concerns warranting a pretrial ruling. See post, at 254, 257, 262-265. Neither Perry nor the dissent, however, points to a single case in which we have required pretrial screening absent a police-arranged identification procedure. Understandably so, for there are no such cases. Instead, the dissent surveys our decisions, heedless of the police arrangement that underlies every one of them, and inventing a “longstanding rule,” post, at 254, that never existed. Nor are we, as the dissent suggests, imposing a mens rea requirement, post, at 250, 255, or otherwise altering our precedent in any way. As our case law makes clear, what triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive. The box, which Clay found on the ground near where she first encountered Perry, contained ear-stereo speakers. App. 177a-178a. The theft charge was based on the taking of items from Clavijo’s car, while the criminal mischief count was founded on the shattering of Clavi-jo’s ear window. Compare United States v. Bouthot, 878 F. 2d 1506, 1516 (CA1 1989) (Due process requires federal courts to “scrutinize all suggestive identification procedures, not just those orchestrated by the police.”); Dunnigan v. Keane, 137 F. 3d 117, 128 (CA2 1998) (same); Thigpen v. Cory, 804 F. 2d 893, 895 (CA6 1986) (same), with United States v. Kimberlin, 805 F. 2d 210, 233 (CA7 1986) (Due process check is required only in cases involving improper state action.); United States v. Zeiler, 470 F. 2d 717, 720 (CA3 1972) (same); State v. Addison, 160 N. H. 792, 801, 8 A. 3d 118, 125 (2010) (same); State v. Reid, 91 S. W. 3d 247, 272 (Tenn. 2002) (same); State v. Nordstrom, 200 Ariz. 229, 241, 25 P. 3d 717, 729 (2001) (same); Semple v. State, 271 Ga. 416, 417-418, 519 S. E. 2d 912, 913-914 (1999) (same); Harris v. State, 619 N. E. 2d 577, 581 (Ind. 1993) (same); State v. Pailón, 590 A. 2d 858, 862-863 (R. I. 1991) (same); Commonwealth v. Colon-Cruz, 408 Mass. 533, 541-542, 562 N. E. 2d 797,805 (1990) (same 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_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellant, v. Eric Owen WINSON, Defendant-Appellee. No. 85-5293. United States Court of Appeals, Sixth Circuit. Argued Oct. 24, 1985. Decided June 18, 1986. Joe B. Brown, argued, U.S. Atty., Nashville, Tenn., William M. Cohen, for plaintiff-appellant. Vincent E. Wehby, argued, Nashville, Tenn., for defendant-appellee. Before ENGEL and KEITH, Circuit Judges; and JOINER, Senior District Judge. Honorable Charles W. Joiner, Senior United States District Judge for the Eastern District of Michigan, sitting by designation. ENGEL, Circuit Judge. The single issue in this appeal is whether the “any court” provision of 18 U.S.C. § 922(h)(1) applies only to convictions by courts within the United States. The United States appeals the district court’s dismissal of a four count indictment charging Winson with violating Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L.No. 90-351, 82 Stat 197. Count One charged Winson with unlawful receipt of a .460 caliber Weather-by MKV rifle and a .20 gauge Browning shotgun, in violation of section 922(h)(1). Count Two charged that Winson knowingly made a false statement to the dealer in order to obtain the guns mentioned in Count One, in violation of section 922(a)(6). Count Three charged Winson with unlawful receipt of a .243 caliber Colt rifle, in violation of section 922(h)(1). Count Four charged that Winson knowingly made a false statement to the dealer in order to obtain the gun mentioned in Count Three, in violation of section 922(a)(6). Section 922(h)(1) makes it unlawful for any person “who has been convicted in any court of ... a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm or ammunition which has been shipped ... in interstate ... commerce.” (emphasis added). Winson was a citizen of Zimbabwe until June 12, 1985, when he became a naturalized citizen of the United States. Since 1976, he and his family were resident aliens. Counts One and Three charging violations of section 922(h)(1) are predicated upon two convictions alleged by the government to have been obtained in foreign countries: a 1970 conviction by an Argentinian court of possessing counterfeit United States currency and a 1976 conviction of fraud by a Swiss court. Counts Two and Four charging violations of section 922(a)(6) are predicated upon Winson’s failure to disclose these convictions to the dealer when he bought the guns at issue here. Winson filed a motion to dismiss the indictment in the district court arguing that section 922(h)(1) does not embrace convictions obtained in foreign courts. In a memorandum opinion dismissing the indictment in its entirety, the trial judge noted that a similar statute, 18 U.S.C. App. § 1202, expressly applies only to convictions “by a court of the United States or of a State or any political subdivision thereof of a felony” and held that it created an ambiguity in the “any court” language of section 922(h)(1). The trial judge stated: [Tjhis Court is guided by the well-established maxim that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Lewis [Re-wis] v. United States, 401 U.S. 808 [91 S.Ct. 1056, 28 L.Ed.2d 493] (1971). See also Whalen v. United States, 445 U.S. 684 n. 10 [100 S.Ct. 1432, 63 L.Ed.2d 715] (1980); United States v. Dalpiaz, 527 F.2d 548, 552 (6th Cir.1975). This general rule applies when a court is uncertain about a statute’s meaning and is not to be used as a device to circumvent legislative intent. See Perrin v. United States, 444 U.S. 37, 49-50 [100 S.Ct. 311, 317-18, 62 L.Ed.2d 199] (1979). United States v. Winson, No. 3-84-00060, slip op. at 2-3 (M.D.Tenn. Mar. 6, 1985). The trial judge then observed that section 922(h) had been held by the Supreme Court to be unambiguous in its provisions relating to interstate commerce. See Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976). Nevertheless, the court went on to say: Barrett does not address the issue of interpreting the phrase “in any court” as it pertains to Congressional limitations on gun possession. Consequently, although the intent of Congress may be clear in section 922(h) as it pertains to interstate commerce, it is this Court’s conclusion that interpretation of “in any court” demands resolution in defendant’s favor. Adherence to the Government’s theory would require judicial recognition of military tribunal adjudications in Nicaragua, as well as condemnations of political prisoners in Poland. Congress could not have intended such an inequitable application of the statute. “In any court” can only be reasonably interpreted as referring to convictions rendered in courts of the United States or of a state or political subdivision thereof. The principle of lenity is controlling. See United States v. Bass, 404 U.S. 336 [92 S.Ct. 515, 30 L.Ed.2d 488] (1971). Winson, at 3-4. We have carefully considered the rationale and the cases cited by the trial judge in support of his holding. We have also carefully reviewed the legislative history of both 18 U.S.C. § 922 and of 18 U.S.C.App. § 1202, as well as the judicial interpretation which has developed concerning both Acts. We agree with the trial court that an examination of the legislative history of Title IV reveals no discussion of the actual meaning of the phrase “in any court.” At the same time, it is equally evident that the cited language in section 922 was not intended by the Congress to be limited only to convictions by the courts of the United States or of a state or political subdivision thereof as is the specific language of 18 U.S.C.App. § 1202. In essence, the trial judge urges that we view the patently unambiguous language in section 922 as rendered latently so by the co-existence of the expressly different and more limiting language in section 1202. This ambiguity arises, if at all, from the imposition upon Title IV of the limitations expressly contained in Title VII. What history there is of the two Titles runs entirely counter to this conclusion. Although several Supreme Court cases have noted this partial tension between section 922 and section 1202, see Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 111, 103 S.Ct. 986, 991, 74 L.Ed.2d 845 (1983); Lewis v. United States, 445 U.S. 55, 63-64, 100 S.Ct. 915, 919-20, 63 L.Ed.2d 198 (1980); United States v. Batchelder, 442 U.S. 114, 119-21, 99 S.Ct. 2198, 2201-03, 60 L.Ed.2d 755 (1978), none has intimated that the two statutes were intended to mean the same thing. On the contrary, the Court in Batchelder ruled that the “Congress’ clear understanding [was] that the two Titles would be applied independently.” 442 U.S. at 121, 99 S.Ct. at 2202 (footnote omitted). After reviewing the legislative history of Title VII, Justice Marshall made these observations: Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. 114 Cong Rec. 14774 (1968). Senator Long, the sponsor of the amendment, replied that section 1202 would “take nothing from” but merely “add to” Title IV. 114 Cong.Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussion of the bill, Representative Machen made clear that the amendment would “complement ... the gun-control legislation contained in title IV.” Id. at 16286. Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV. Batchelder,, 442 U.S. at 120, 99 S.Ct. at 2202 (footnote omitted). It is evident that the Supreme Court has found a congressional intent to give each statute an independent construction and application, especially where, as here, the express language of the two Titles indicates different meanings. Having found such an intent, we believe it necessarily follows that, viewed independently, the cited language is indeed unambiguous. The power of Congress to legislate in this area is unquestioned. Therefore, “[Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress.” United States v. Rodgers, 466 U.S. 475, 104 S.Ct. 1942, 1948, 80 L.Ed.2d 492 (1984). In addition, we are not in any way persuaded that the statute in question is either inequitable on its face or in its application here. First of all, there is no evidence that the parade of horribles hypothesized by the district judge has any application to the facts here. It is not pointed out to us in any particular how the claimed convictions in Argentina and Switzerland were the result of the violation of the defendant’s civil rights or contrary to any cherished principle of American constitutional law. The facts of the convictions are not contested, at least for the purposes of the motion to dismiss which was made in this case. Since the object of the statute is to prevent the possession of firearms by-individuals with serious criminal records, see, e.g., Braswell v. United States, 224 F.2d 706 (10th Cir.), cert. denied, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 752 (1955), we can perceive no reason why the commission of serious crimes elsewhere in the world is likely to make the person so convicted less dangerous than he whose crimes were committed within the United States. Moreover, we do not perceive any congressional intent to exclude from the Act’s coverage a class of felon whose unlawful conduct occurred outside of this country. Even more persuasive, however, is the fact that Congress itself has offered a plain and sensible remedy for the concerns expressed by the trial judge. Both Title IV and Title VII contain provisions for the relief from the disabilities imposed by section 922 and section 1202(a). Section 925(c) authorizes the Secretary of the Treasury to grant such relief where an applicant shows that “the circumstances regarding the conviction, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.” 18 U.S.C. § 925(c). The Supreme Court in Lewis v. United States, suggested that individuals whose felony convictions are constitutionally infirm might use Title VII’s corresponding procedure, 18 U.S.C.App. § 1203(2), and observed that “Congress clearly intended that the defendant clear his status before obtaining a firearm, thereby fulfilling Congress’ purpose ‘broadly to keep firearms away from the persons Congress classified as potentially irresponsible and dangerous.’ ” 445 U.S. at 64-65, 100 S.Ct. at 920 (citation omitted). See also Dickerson v. New Banner Institute, Inc., 460 U.S. at 112, 103 S.Ct. at 991. Further protection is provided to persons in plaintiff’s class by the availability of judicial review of the Secretary’s decision to deny statutory relief from disabilities. See Bradley v. Bureau of Alcohol, Tobacco and Firearms, 736 F.2d 1238 (8th Cir.1984); Kitchens v. Bureau of Alcohol, Tobacco and Firearms, 535 F.2d 1197 (9th Cir.1976). Beyond this, we cannot avoid observing the clarity of the questions asked on the approved form of disclosure which Winson is charged with having falsely executed. Among other questions, the form requires the disclosure of whether the applicant has “been convicted in any court of a crime punishable by imprisonment for a term exceeding one year____” Finally Winson contends that the application of section 922(h)(1) to foreign convictions is inequitable because the Bureau of Alcohol, Tobacco and Firearms itself interpreted this section as being inapplicable to foreign convictions. Marvin J. Dressier, then director of ATF’s Technical Division, issued an interpretation to that effect in 1974. The government does not dispute that the position of the ATF was that which is stated in the Dressier interpretation. The record reflects that the ATF changed its position on July 30, 1984. Steven Higgens, the Director of Enforcement and Operations, concluded that “the ATF should reverse its current position so as to acknowledge the Federal firearms and explosives disabilities of persons who have been convicted in foreign courts of a crime punishable by imprisonment for a term exceeding 1 year.” In the 1974 interpretation by the Director of ATF’s Technical Division, three reasons were given: 1. Foreign law does not, in the majority of instances, give the protections to our citizens that they are afforded under our system of justice. 2. There is difficulty in interpreting foreign law with respect to the specific offense charged. 3. There is extreme difficulty in obtaining adequate documentation of a foreign conviction. In overturning its earlier decision the Director observed, as have we, that “[w]ith regard to the reading of 18 U.S.C. Chapter 44 in conjunction with the provisions of Title VII, the United States Supreme Court has made it clear that these are independent statutes, each of which is to be interpreted and enforced on its own terms. United States v. Batchelder, 442 U.S. 114, 119, 99 S.Ct. 2198, 2201, 60 L.Ed.2d 755 (1979). Accordingly, in construing the term conviction in any court under Chapters 40 and 44, ATF is not on sound legal ground in looking to the language of 18 U.S.C.App. § 1202(a).” The cited 1974 interpretation was contained in a memorandum, but does not appear from the record to have been included in any gun control regulations and thus it does not act as a permanent inhibition upon the agency, in our opinion. Even were this so, “[cjategorical exemptions from the clear commands of a regulatory statute, though sometimes permitted, are not favored.” Alabama Power Company v. Costle, 636 F.2d 323, 358 (D.C.Cir.1979). Moreover, no specific claim has been made here that Winson relied upon the 1974 interpretation. On the contrary, in his appeal brief it is noted that “it cannot be said that defendant was aware of or relied on its memorandum.” The cited objections found in the 1974 interpretation may or may not pose difficulties in prosecution of persons convicted of foreign crimes under the Act, but these are evidentiary problems for the prosecution; they may not serve as a basis for preelud-ing or dismissing the indictment altogether. Whether Winson will have other defenses to the charges, we cannot know and it is not our function to anticipate them. These must await the further progress of the case upon remand. Accordingly, the judgment of the district court is vacated and the cause remanded with directions to reinstate the indictment. . 18 U.S.C. § 922(h)(1) provides: (h) It shall be unlawful for any person— (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. . 18 U.S.C. § 922(a)(6) provides that it shall be unlawful— for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such imported manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter. . Section 1202 provides in relevant part: Any person who— (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. Section 1202 is included in Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. See 82 Stat. 236. . This interpretation is contained in a May 7, 1974, memorandum addressed to the Chief of the Regulations and Procedures Division of the Bureau of Alcohol, Tobacco and Firearms. It appears to be a response to a January 11, 1974, inquiry asking whether foreign convictions preclude issuance of firearms permits under the Internal Revenue Code or under Title 18. This document is an internal memorandum and does not appear to have been intended for circulation to anyone other than the Regulations and Procedures Division. This memorandum clearly does not have the effect of an administrative regulation or a published rule. Even the appellee acknowledges that it is not binding on this court. See Appel-lee’s br. at 21. . This policy change is contained in a memorandum from Mr. Higgens to the Assistant Secretary of the Treasury for Enforcement and Operations. This, too, is an internal document. 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_state	37	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". HARTFORD ACCIDENT & INDEMNITY CO. v. CITY OF SULPHUR, OKL. CITY OF SULPHUR, OKL., v. HARTFORD ACCIDENT & INDEMNITY CO. Nos. 2294, 2296. Circuit Court of Appeals, Tenth Circuit. Nov. 10, 1941. Rehearing Denied Dec. 15, 1941. F. A. Rittenhouse, of Oklahoma City, Okl. (John F. Webster, W. D. Hanson, and A. J. Rittenhouse, all of Oklahoma City, Okl., on the brief), for appellant and crossappellee. W. J. Williams and E. H. Williams, both of Ardmore, Okl. (J. E. Williams and H. A. Ledbetter, both of Ardmore, Okl., on the brief), for appellee and cross-appellant. Before BRATTON, HUXMAN, and MURRAII, Circuit Judges. BRATTON, Circuit Judge. This appeal and cross-appeal grow out of an action instituted by the City of Sulphur, Oklahoma, against The Hartford Accident and Indemnity Company to recover upon the bonds of certain former officers of the city on which the company was surety. The complaint contained six causes of action. The first was on the bond of G. Leslie Horsman, city clerk from May 2, 1936, to June 1, 1937. It was alleged that the clerk failed to charge against the appropriations made by the excise board of the county certain accounts for labor, material and supplies in the aggregate sum of $6,293.92; that such accounts were allowed by the board of city commissioners but that no warrants were issued for them; that instead of issuing warrants the accounts were offset with accounts due the city for water furnished the claimants; that warrants were issued for other claims than those offset for the entire amount of the appropriations for the respective fiscal years in question; and that all of the claims offset in the manner outlined were in excess of the appropriations. The second cause of action was on the bond of Newton Rice, clerk from June 9, 1937, to July 6, 1937. It was alleged that like accounts aggregating $486.65 were similarly offset. The third cause of action was on the bond of Charles F. Smith, clerk from August 1, 1937, to May 31, 1938. It was alleged that accounts of the same kind aggregating $3,-793.49 were offset in like manner. And it was further alleged that Smith and Glenn Ray, mayor and manager of the city, failed to account for $7,429.39 which they had received in payment of water bills due the city. The fourth cause of action was on the bond of R. E. Mudd, commissioner from May 7, 1935, to May 7, 1937. It was alleged that Mudd voted to allow and pay the claims described in the first cause of action up to and including those allowed on April 6, 1937; and that with knowledge that such claims had been so allowed and not charged against the appropriation, he and other commissioners allowed claims far in excess of 'the appropriations made- for that purpose. The fifth cause of action was on the bond of Jphn M. Townsley, commissioner from May 3, 1935, to May 3, 1937. It was alleged that Townsley voted to allow and pay the claims described ■ in the first cause of action, up to and including those allowed April 6, 1937; and that with knowledge that such claims had been allowed in that manner and not charged against the appropriation, he and other commissioners allowed claims far in excess of the'appropriations. And the sixth cause, of action was on the bond of Ray, mayor and manager from May 4, 1936, to May 4, 1938. It was- alleged that Ray, as mayor, approved and voted for each of the claims described in the first, second and third causes of action; that he failed to account for funds of the city, as set forth in the third cause of action,; and further, that he was authorized to purchase sewerpipe for use of the city in extending its sewer system, that he failed to accept the lowest laid but accepted a higher one, that only 6,500 feet of pipe were needed, that the city received only that amount but that he approved and allowed a claim for 9,200 feet at the price fixed in the higher bid. The city subsequently filed an amendment to its complaint in which it pleaded that since the institution of the suit, it had collected from the surety on the bond of George B. Carr, a commissioner, the sum of $562.50 which had been applied, $174.65 to the claims allowed on May 5, 1936, and $387.85 to those allowed on June 2, 1936; that it had collected from the surety on the bond of Hugh Cushenberry, another commissioner, the sum of $562.50 which had been applied, $104.20 to the claims allowed on June 2, 1936, and $458.30 to those allowed on July 8, 1936; that it had collected from the surety on the bond of Ernest Ball, a third commissioner, the sum of $562.50 which had been applied, $544.64 to the claims allowed on May 4, 1937, and $17.86 to those allowed on June 1, 1937; and that the prayer of plaintiff should be therefore reduced in the sum of $1,687.50, or to the sxim of $20,745.95, together with interest thereon from May 4, 1938. The company filed its answer and third party complaint, bringing in the respective principals on the bonds in suit, except Horsman. The execution of the bonds was admitted. In respect to the causes of action on the bonds of the clerks, the company pleaded that the acts of the clerks were merely clerical or ministerial and created no liability, and that the causes were barred by limitation. In respect to the causes of action on the bonds of the commissioners, it joined issue, denied liability or the existencé of any cause of action, denied that the commissioners had voted for the allowance of the claims, and pleaded limitation. In respect to the cause of action on the bond of the mayor and manager, it joined issue, denied that the principal had voted for the allowance of the claims, pleaded limitation as to recovery for the allowance of such claims, denied that funds belonging to the city had been withheld, denied any irregularity in the purchase of sewer pipe, and pleaded that the city received and used all pipe purchased. In addition, the pleading contained appropriate allegations as a third party complaint for recovery against the third party defendants. On the day of the trial plaintiff dismissed the second cause of action, and the company dismissed its third party complaint against Rice. The court determined that the offsetting of water bills with claims for labor against the city was not authorized by law, and that the company was liable on the bonds of the mayor and manager and the two commissioners; that the causes of action on such bonds were not barred by limitation; that the causes of action on the bonds of the clerks were barred by limitation; that the city was not entitled to recover for the alleged withholding of city funds or for the alleged irregularities in respect of the purchase and use of the sewer pipe; and that the company was entitled to credit on the amount due for the entire sum which the city received from the sureties on the bonds of the other commissioners. Judgment was entered accordingly. By appeal the company challenges on several grounds the judgment rendered against it, and by cross-appeal the city urges that the court erred in holding that the causes of action on the bonds of the clerks were barred by limitation, in failing to render judgment in its favor for the alleged withholding of city funds and for the alleged wrongful acts of the mayor and manager in connection with the purchase and use of the sewer pipe, and in allowing the company credit for the full sum received from the sureties on other bonds. As already indicated, the city sought in the first and third causes of action to recover upon the respective bonds of two clerks for their acts in connection with the offsetting of water bills due the city with claims against the city for labor performed. The last offsetting pleaded in the first cause of action occurred on June 1, 1937, the last alleged in the third cause took place on April 1, 1938, and the suit was filed on October 4, 1939. The fourth subdivision of section 101, Oklahoma Statutes 1931, 12 Okl.St.Ann. § 95, subd. 4, provides that an action upon a statute for penalty or forfeiture shall be filed within one year after the cause of action shall have accrued and not afterwards, except where the statute imposing the liability prescribes a different limitation. That provision has application here, and since the suit was not filed until after the expiration of the prescribed period, the first and third causes of action (except that part of the latter which sought recovery for the withholding of city funds) were barred. Battles v. Conner, 182 Okl. 613, 79 P.2d 232. We come next to the fourth and fifth causes of action in which recovery was sought on the respective bonds of two commissioners for the offsetting of water bills with claims for labor, and to that part of the sixth cause in which like recovery was sought on the bond of the mayor and manager. The city had a charter form of government. Section 12674, Oklahoma Statutes 1931, 68 Okl.St.Ann. § 286, requires the mayor and council of each city, or the officers exercising like power in a city having a charter form of government, to prepare and furnish the excise board of the county an itemized statement of estimated needs and probable income from sources other than ad valorem tax for current expenses for the current fiscal year; section 12677, 68 Okl.St.Ann. § 289, authorizes the excise board to revise and correct the estimate, and provides that when the board has examined, revised and adjusted the items it shall approve such items and appropriate the respective amounts thereof for the purposes specified, and that the appropriations for a city shall be itemized so as to show among other things the amount of funds appropriated for water; section 12678, 68 Okl.St.Ann. § 290, authorizes the excise board to make levies of ad valorem taxes upon property in each municipal subdivision with which to meet the appropriations, and provides that the several items of the estimate made by the board shall be an appropriation of funds for the several and specific purposes named in the estimate, that the appropriations made shall not be used for any other fiscal year or purpose whatever, that each clerk or issuing officer shall open and keep an account with the amount of each item of appropriation showing the purpose for which the appropriation was made, that no warrant shall be issued, approved, signed or registered against an appropriation for a purpose other than that for which it was made, or in excess of the amount of such appropriation; section 12681, 68 Okl.St. Ann. § 293, provides that the term “appropriation” shall be synonymous with that of “estimate made and approved,” as defined in section 3, chapter 80, Laws of 1911, 62 Okl.St.Ann. § 473; section 12682, 62 Okl. St.Ann. § 474, provides that every warrant must be drawn against a specific appropriation, and that as soon as it is issued it shall be signed, attested and delivered to the treasurer of the county or subdivision thereof issuing it for registration; section 5948, 62 Okl. St.Ann. § 471, provides that all public funds of a county or subdivision thereof shall be disbursed only in payment of legal warrants, bonds and interest coupons; section 5953, 62 Okl.St.Ann. § 477, provides that it shall be unlawful for any officer to issue, approve, sign, attest or register a warrant or certificate of indebtedness in any form in excess of the estimate of expenses made and approved for such year' or authorized for such purpose, and that any warrant issued, approved, attested or registered in excess of the estimate made and approved shall not be a charge against the municipality, but may be collected by civil action from the offending officer, or from the surety or sureties on his bond; and section 5955, 62 Okl.St.Ann. § 479, provides that it shall be unlawful for the commissioners of any city to make any contract for, incur, acknowledge, approve, allow or authorize any indebtedness against the municipality, or authorize it to be done by others, in excess of the estimate made and approved by the excise board for such purpose for the current fiscal year, that any such indebtedness contracted, incurred, acknowledged, approved, allowed or authorized in excess of the appropriation shall not be a charge against the municipality but may be recovered by civil action from the officer whose acts offend the statute, or from his bondsmen. The policy of offsetting water bills with claims for labor extended over many months. Several hundred transactions of that kind took place, aggregating thousands of dollars. Each instance of offsetting was tantamount to the water bill being paid in money, the money being covered into the city treasury, and the claim for labor being allowed and paid out of city funds. But other claims for all or substantially all of the appropriations made by the excise board for the current fiscal year were allowed and paid by warrant in the manner authorized by law. It therefore is readily apparent that the essence and effect of the action of the mayor and manager and the commissioners in offsetting claims against claims in the manner and under the circumstances outlined was to incur, acknowledge, approve, allow and authorize an indebtedness against the city in excess of the estimate made and approved by the excise board for such purpose, in contravention of laws of the state, particularly section 5955, supra, for which such section expressly makes the surety on their official bonds liable. It amounted to the unauthorized expenditure of city funds in excess of the appropriation made for that purpose. Regardless of the actuating motive, it constituted a wrongful misapplication of funds for which the company is liable. Cf. Dowler v. State, 179 Okl. 532, 66 P.2d 1081. But the company contends that such causes of action were penal in nature and therefore barred by limitation in like manner to the causes on the bonds of the clerks. In State v. Ingram, 164 Okl. 244, 23 P.2d 648, an informing taxpayer sued the county assessor, the deputy assessor who was also county treasurer during part of the time in question, the county commissioners, a tax ferret, and the sureties on their official bonds. It was alleged that pursuant to a fraudulent scheme which the deputy assessor and the tax ferret entered into, properties listed for taxes were omitted from the rolls, the schedules were delivered to the tax ferret, he pretended to discover the properties and placed them on the rolls and received fifteen per cent of the amount paid as taxes which was divided among the assessor, the deputy assessor and the tax ferret. Recovery was sought against the three officers and the sureties on their official bonds for the amount of the money misappropriated, and in addition double recovery was sought against such officers under sections 5964 and 5965 of the statutes, 62 Okl.St.Ann. §§ 372, 373, supra. The court held that in respect to seeking recovery for the funds misappropriated the action was not one for a penalty, but that in respect to seeking double recovery it was for penalty. The city sought in these causes of action to recover for funds wrongfully expended. No additional recovery was sought. No double recovery was involved. The liability was therefore not penal in nature. The fifth subdivision of section 101, supra, provides that an action upon the official bonds or undertaking of an executor, administrator, guardian, sheriff, or any other officer can be brought only within five years after the cause of action shall have accrued, and not afterwards. In respect to limitation, that provision has application to a suit upon the official bonds of a mayor and manager and city commissioners, except where a penalty is sought. National Surety Co. v. State, 111 Okl. 185, 239 P. 262; Arnold v. Board of Commissioners, 124 Okl. 42, 254 P. 31; James v. State, 160 Okl. 99, 15 P.2d 591. It may be that as an original proposition the applicable statutes relating to the liability of clerks in one instance and to that of mayor and manager and commissioners in the other fail to indicate a clear basis for the conclusion that the liability is penal in one and therefore barred by the one-year provision but not in the other. But the question does not come to us as an original proposition. The supreme court of the state has charted our course, and we must follow. It is further contended that the city failed to make out a case for recovery upon the bonds of the two commissioners in that no evidence was offered to show that they voted for the allowance of the claims used in offset against water bills. The minutes of the meetings were offered in evidence. They disclosed the presence of the mayor at all meetings; in most instances they recited the presence of all commissioners; in two instances the presence of Mudd was expressly noted but not that of Townsley; after Mudd’s term expired, the presence of Townsley was noted in virtually all instances ; and in some cases they were not entirely clear. They recited the approval of the claims, and in one or two instances recited that such claims were unanimously approved but were otherwise silent in respect to the manner in which any particular commissioner voted; and they failed to recite in any instance a vote against approval. No other evidence was offered touching the question. The argument is that although the commissioners were present at the opening of each meeting, still they may have departed or absented themselves when the particular action in question was taken. The case of Pickton v. City of Fargo, 10 N.D. 469, 88 N.W. 90, is relied upon to sustain the contention. There a statute of the state required that the yeas and nays be taken upon the passage of all ordinances and be entered upon the journal of the proceedings. An entry in the minutes showed by name eight members of the council present at the beginning of the meeting, and a subsequent entry recited that on the final passage of the ordinance in question eight members voted in the affirmative but did not record the yeas and nays by name. The court held that there was a failure of compliance with the requirements of the statute. Section 6385, Oklahoma Statutes, 11 Okl. St.Ann. § 647, supra, provides that no ordinance for the borrowing or appropriation of money shall be valid unless a majority of all councilmen elected shall vote for it, and that the vote shall be taken by yeas and nays and entered upon the records. But no other statute has been called to our attention requiring that the vote of city commissioners be by yeas and nays. In the absence of a controlling statute or rule, all members of a legislative body present and not recorded as voting otherwise or as refusing to vote are presumed to have voted in the affirmative. United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321; Abels v. McKeen, 18 N.J.Eq. 462. The minutes were sufficient to constitute a prima facie showing that the two commissioners voted for the action taken and to shift to the company the burden of showing otherwise. No effort was made to carry that burden. The court allowed interest upon the amount of the misappropriated funds from the end of the respective fiscal years during which the misappropriations occurred. That action is challenged. Section 9959 of the statutes, 23 Okl.St.Ann. § 6, supra, provides in substance that where damages are susceptible of calculation with reasonable certainty both as to amount and time when due, interest shall be allowed from that day, except during such time as the debtor may have been prevented by law or by act of the creditor from making payment. Here the misappropriated public funds were susceptible of calculation with reasonable certainty both in respect to amount and time, and the allowance of interest in such circumstances was proper. Cf. Blackwell Oil & Gas Co. v. Mid-Continent Petroleum Corporation, 182 Okl. 588, 79 P.2d 227; Hartford Accident & Indemnity Co. v. Collins-Dietz-Morris Co., 10 Cir., 80 F.2d 441. The city sought in the third cause of action to recover on the bond of Smith for money which he received in payment of water bills and appropriated to his own use. Like recovery was sought in the sixth cause on the bond of the mayor and manager. Evidence was adduced which tended to show that the mayor and manager and the clerk frequently gambled in the city building, that they sometimes took money from the cash till with which to engage in such pastime, and that the cash deposited in the bank during the period in question was much less than that deposited during the preceding and the following year. But Smith testified that he accounted for all city funds coming into his, hands, and that he replaced in the till all funds withdrawn for the purpose of gambling. The mayor and manager testified that he took some cash from the till from time to time but always put in his personal check which was paid, or otherwise accounted for the amount. And there was other testimony which tended to corroborate them. • The court found in general language that the evidence failed to sustain the allegations of the complaint in respect to the charged misappropriations. The evidence presented an issue of fact for the trial court, and it was resolved against the city. It cannot be said that the finding was clearly erroneous, due regard being had for the opportunity of the trial court to see and observe the witnesses as well as their demeanor while testifying. The finding must, therefore stand on appeal. Rules of Civil Procedure, 52(a), 28 U.S. C.A. following section 723c. The city also sought in the sixth cause of action to recover on the bond of the mayor and manager for alleged wrongful acts in connection with the purchase and use of sewer pipe. The court found that after inspecting samples of the material offered at eighty cents per foot and that offered at ninety-five cents per foot, the commissioners accepted the bid for the latter; that the company submitting the bid delivered to the city 9,476 feet of pipe, for which the city paid ninety-five cents per foot; that employees of the city receipted for the pipe and delivered it to the Works Progress Administration for use in the completion of a project for the city; that the commissioners had nothing to do with the handling of the project, except to furnish the pipe; that the evidence failed to disclose that the mayor and manager personally had anything to do with the handling of the pipe; that while the circumstances surrounding the transaction were suspicious and the evidence failed to show that the city received any beneficial use of about 2,000 feet of such pipe, still there was no basis for a finding that the mayor and manager either conspired with the contractor to file a false claim or that he disposed of any of such pipe after it was delivered; and that the most which could be said was that the matter had been handled negligently. Again, the evidence presented an issue of fact for the .court; again, it cannot be said that the finding was clearly erroneous, due regard being had for the opportunity of the trial court to observe the witnesses and judge of their credibility; and again, the finding cannot be overturned on appeal. Rule 52(a), supra. The remaining question is whether the full amount which the city received frm the sureties on the official bonds of other commissioners should have been treated as a credit on the amount for which the company was liable in this case. Where a creditor holds more than one debt or claim against his debtor, or where a single debt or claim consists of several items, the debtor has the right to direct the debt or item on which a payment shall be credited, and it is the duty of the creditor to make application as directed. Wheeler v. American Investment Co., 167 Okl. 558, 31 P.2d 117; Sipes v. John, 177 Okl. 299, 58 P.2d 854. But where the debtor fails to direct 'how a payment shall be applied, and in the absence of equities of third persons, the creditor is ordinarily free to make the application in the manner of his choice. Sipes v. John, supra. There was no showing that any specific directions were given in respect of the manner in which the payments in question should be applied. Neither was there any indication that any part of the money was applied to a liability which had become barred by the five-year statute of limitation to which reference has been made. In the absence of direction, the city was free to apply the amount as it saw fit. Other than a payment expressly or impliedly made on the offset claims pleaded in the complaint in this cause, this company, as surety on the bonds of the mayor and manager and the two commissioners whose bonds are involved here, had no equity in the payments which those sureties made. And since it had no such equity, the city was not required to make application in a manner most beneficial to it. Southwestern Surety Insurance Co. v. Neal, 81 Okl. 194, 197 P. 439; Sipes v. John, supra. For the error in allowing the company credit for the full amount paid by the sureties on the bonds of other commissioners, the' judgment is reversed and the cause remanded. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_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. Robert L. TYSON, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 710 PENSION FUND, Defendant-Appellee. No. 86-1859. United States Court of Appeals, Seventh Circuit. Argued Dec. 8, 1986. Decided Feb. 12, 1987. Stephen B. Horwitz, Burns, Sugarman & Orlove, Chicago, 111., for plaintiff-appellant. Stephen Feinberg, Asher, Gittler & Greenfield, Ltd., Chicago, 111., for defendant-appellee. Before CUMMINGS and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge. POSNER, Circuit Judge. This ERISA suit against a union pension fund seeks benefits under a pension plan. See 29 U.S.C. § 1132(a)(1)(B). The plaintiff, Robert Tyson, is a former truck driver for Charles Levy & Co. He claims to be entitled to a disability pension under the pension plan established by the collective bargaining agreement between his union (a teamsters local) and Levy. The district court granted summary judgment for the pension fund on the ground that awarding the pension would violate the Taft-Hartley Act. On February 6, 1981, Tyson suffered a totally and permanently disabling injury in an auto accident. The pension plan entitles an employee who becomes totally and permanently disabled to a disability pension, beginning immediately, if he has worked either for 15 complete years or for 14 complete years plus a total of 35 weeks in the first and last year that he was employed. Otherwise he must wait till he reaches age 65 to realize any vested pension rights. Tyson had worked 14 complete years plus 18 weeks his first year and he therefore needed 17 weeks in his last year, 1981, to qualify for the pension. Although disabled after working only 6 weeks in 1981, he was credited for that year with an additional 8 weeks of accrued vacation and disability pay (the collective bargaining agreement requires the employer to pay the employee for 4 weeks after a disabling injury), making a total of 32 weeks in his first and last years (18 + 6 + 8) — which was 3 weeks short. In January 1982, almost a year after Tyson had stopped working for Levy, Levy paid him 4 weeks of additional wages in recognition of his long years of service for Levy and the fact that his employment had been cut short by the accident. Tyson wants to add those 4 weeks to his other 1981 credits. If he succeeds, he will be entitled to the disability pension. The district court thought that the addition of the 4 weeks to Tyson’s 1981 credits was blocked by section 302 of the Taft-Hartley Act, 29 U.S.C. § 186, which makes it unlawful for an employer to pay a union or other representative of its employees — which the pension fund is conceded to be. There is an exception for union pension and welfare funds but it is subject to various limitations, of which the one pertinent here is that “the detailed basis on which such payments are to be made [by the employer to the fund] is specified in a written agreement with the employer.” 29 U.S.C. § 186(c)(5)(B). The district judge thought this proviso not satisfied here. En route to this conclusion he expressed skepticism about most of the fund’s contractual arguments, but the focus of his decision was the fund’s statutory ground, and we regard the contractual issues as still open; Tyson conceded as much at the oral argument of the appeal. Article 29 of the collective bargaining agreement, captioned “Pension Plan,” requires the employer to contribute to the union’s pension fund a fixed amount per week for each employee covered by the agreement who has been on the employer’s payroll for at least 30 days. It also authorizes the making of “appropriate trust agreements necessary for the administration of such fund.” Levy never made a contribution for the additional 4 weeks that Tyson wants credited to 1981, but the fund admits it would have refused to accept it, on the ground that accepting it would violate the statute; and the parties appear to assume that if the fund would accept the contribution, Levy would make it. The fund’s position (and hence the district court’s decision) is correct if “the detailed basis” for such a contribution is not “specified in a written agreement with the employer.” It is not specified in the collective bargaining agreement itself. But section 1.25 of the trust agreement that sets forth the details of administration provides: Each Employee will be credited with an Hour of Work for: (a) Each hour for which an Employee is paid, or entitled to payment by an Employer for duties performed____ (b) Each hour, up to a maximum of 501 hours, for which an Employee is directly or indirectly paid or entitled to payment by the Employer for reasons (such as vacation, holiday, illness, incapacity, including disability, layoff, jury duty, military duty or leave of absence) other than the performance of duties (irrespective of whether the employment relationship has terminated)____ This section makes clear that an employee such as Tyson is entitled to pension credit for certain hours that he does not actually work, even if, as here, he is paid for those hours after he has ceased to be employed. If the 4 weeks for which he was paid in 1982 are added to the 8 weeks for which he received vacation and disability pay in 1981 and which the fund does not contest, the total (12 weeks = 480 hours) is below the 501-hour ceiling. The pension fund argues that section 1.25 was not meant to embrace “gifts,” but there are two answers to this. The first is that the provision does not in terms exclude gifts; at least the words do not compel such a reading. The expression “for reasons ... other than the performance of duties” does not appear to require nonaltruistic “reasons”; the reasons listed between the parentheses are illustrative rather than exhaustive. Furthermore, to describe the 1982 payment to Tyson as a “gift” is surely a mistake. The world of employee compensation does not divide neatly into legally required payments on the one hand and gifts on the other. A bonus, for example, is neither; nor is severance pay; nor — what indeed is a form of severance pay — is a payment made in recognition of long years of work abruptly cut off by a tragic accident. Many of the mutual understandings on which the effective functioning of labor markets depends are not reduced to legally enforceable commitments, because the parties don’t want the uncertainty and expense of a lawsuit if they have a disagreement. See Epstein, In Defense of the Contract at Will, 51 U.Chi.L.Rev. 947 (1984). (As a matter of fact, employment at will remains the dominant form of employment relationship in this country.) Nevertheless those nonbinding mutual understandings are commercial rather than altruistic. It is true that when as in this case the employment relationship is defined by a collective bargaining agreement, payments to workers of compensation in excess of what the agreement specifies may, by undermining the union’s status as exclusive bargaining representative of the workers, violate the National Labor Relations Act. See e.g., NLRB v. Everbrite Electric Signs, Inc., 562 F.2d 405 (7th Cir.1977) (per curiam). But there is no suggestion that Levy’s payment of an additional 4 weeks’ wages to Tyson after he had ceased being an employee of Levy’s raises any problems under the agreement and hence under the Act. Indeed, the fact that “gifts” by an employer to his unionized employees could raise problems under the Act is one more piece of evidence that the payment Levy made to Tyson in 1982 is not properly described as a gift. A better argument for the pension fund is that since Levy had already paid Tyson the 4 weeks disability pay that the collective bargaining agreement required Levy to pay him, the additional payment in 1982 could not have been by reason of disability and therefore cannot be fitted within section 1.25. But the section is not clearly limited to payments made under legal obligation. The words “entitled to payment” might have that force; that is, they could be intended to protect the employee in the event that the employer, though contractually obligated to pay him, fails to do so. But they need not be so read; the disjunctive treatment of “paid” and “entitled to be paid” could signify that the employee was entitled to credit for money actually paid him whether or not legally due him, plus money legally due him whether or not actually paid him. The payment made in 1982 was certainly made by reason of Tyson’s disability, perhaps in conjunction with his long years of service — a factor not excluded by the section, though not specifically listed in it. The fund’s best argument is that to allow a gratuitous payment to be credited would enable an employer to transfer great wealth, at small cost to itself, from the fund to a former employee. The contribution that Levy would need to make to the pension fund (if the fund would accept it) on the payment in 1982 that put Tyson over the hump is only about $200; if this payment entitled him to a pension it would mean that for a trivial outlay Levy had bought Tyson an annuity of $375 a month for the 12 years until his regular pension vests at age 65. The present value of such an annuity is on the order of $30,000. In effect, at the discretion of the employer, a 14 years and 35 weeks vesting period is lowered to 14 years and 31 weeks. (It can’t be shortened much beyond this, however, because of the 501-hour limitation in section 1.25.) These arguments are respectable and may, singly or together, in the end demonstrate that as a matter of contract interpretation Tyson is not entitled to the disability pension. (He would not be completely out in the cold; he is receiving a social security disability pension.) But they do not show that there is no “detailed basis” for a contribution by Levy, and hence that the statute bars a pension for Tyson. The detailed basis is section 1.25. The existence of interpretive uncertainty does not bring section 302 of the Taft-Hartley Act into play. Section 302 was primarily designed to prevent employers from bribing union officers and union officers from extorting money from employers. Arroyo v. United States, 359 U.S. 419, 425-26, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959); United States v. Ryan, 225 F.2d 417, 426 (2d Cir.1955) (L. Hand, J., dissenting), rev’d, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335 (1956); Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir. 1981). The present case is remote from this policy. In making an additional payment to Tyson a year after the accident forced him to stop working, Levy was not trying to bribe union officers — whether in order to undermine the loyalty of the teamsters union to the teamsters employed by Levy or for any other reason. Nor was Levy being extorted to provide favors for union officers. It was merely trying to get a pension for its former employee — a pension, it is true, that would be paid for very largely by other employers; but whether or not this feature gives them a basis for squawking, or violates the collective bargaining agreement, it does not affront the purposes behind the statute. Granted, a statute may have a life of its own, and because of its strict and broad wording forbid practices remote from the draftsmen’s contemplation. Legislators often make a statute overinclusive in order to be sure there are no loopholes; we saw an example of this recently in FDIC v. O’Neil, 809 F.2d 350, 352 (7th Cir.1987). But even read literally, section 302 does not carry the day for the pension fund. The specific terms on which hours are to be credited are set out in detail and in writing in section 1.25 of the plan agreement, which can of course be considered along with the collective bargaining agreement in deciding whether the statutory requirement has been satisfied. Paddack v. Dave Christensen, Inc., 745 F.2d 1254, 1263 (9th Cir.1984). No writing, however detailed, can eliminate all questions of interpretation; the existence of a large body of case law arising from disputes over the meaning of the Internal Revenue Code shows this. The existence of an interpretive question does not preclude the pension fund from accepting employer contributions. It is true, but not helpful to the fund, that the statutory requirement of a detailed written basis for pension and welfare benefits appears to have been intended not only to back up the statute’s anti-bribery and anti-extortion policies but also to limit the discretion of unions in administering such funds, lest union officers use the discretion to punish their enemies and reward their friends. See 93 Cong.Rec. 4746-47 (1947); Denver Metropolitan Ass’n v. Journeyman Plumbers & Gas Fitters Local No. 3, 586 F.2d 1367, 1372-73 (10th Cir.1978). How detailed is detailed enough is not discussed in the cases; but section 1.25 of the plan agreement in this case is detailed enough to transform a dispute over the exercise of discretion (a dispute the persons vested with the discretion are almost certain to win) into a dispute over the meaning of a document, a dispute susceptible of objective resolution by a court or arbitrator. That, we believe, is sufficient detail to satisfy the statute. And in fact this case involves no exercise of discretion by the fund’s managers or anyone else connected with the union. If the fund’s statutory argument were accepted, employees would find it hard to qualify for pensions from union funds. For any time the pension plan was not absolutely crystalline in its application to an employee’s situation, the fund would refuse to accept contributions and he would therefore fail to qualify. Such an interpretation of section 302 would throw an unintended monkey wrench into the operation of union pension plans and would endanger the pension rights of many employees covered by such plans. The collective bargaining agreement provided an adequately detailed written basis for Levy to contribute to the fund for the 4 weeks pay that it gave Tyson in 1982. Whether, with this contribution, he is entitled to the pension is a question of contractual interpretation that the district court did not answer. The court did say that since the fund could not credit the contribution to 1981, it would not be acting irrationally in crediting it to 1982; but with the premise removed, the conclusion falls. Indeed, but for the statute the fund would apparently have no objection to crediting the payment to 1981 — though since the contribution was never made, the fund has never had occasion to decide what year to credit it to. We hold only that the statute is not a bar to Tyson’s claim. We remand the case for a determination of his contractual entitlement. Reversed and Remanded, With Directions. 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_appfiduc	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. LONDON v. NORFOLK & W. RY. CO. (two cases). Nos. 4619, 4620. Circuit Court of Appeals, Fourth Circuit. April 13, 1940. James J. Laughlin, of Washington, D. C., for appellant. R. Carter Scott, Jr., of Richmond, Va., for appellee. Before PARKER, DOBIE, and NORTH-COTT, Circuit Judges. PER CURIAM. Motion to dismiss the appeals in these cases will be denied. The orders dismissing the cases will be affirmed, however, on the ground that since the defendant is a Virginia corporation, having its principal office in the Western District of Virginia, it is not suable, over its objection, in the Eastern District of that State, diversity of citizenship being the sole ground of jurisdiction. The recent case of Neirbo Co. et al. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. -, is not a holding to the contrary. That case involved suit against a corporation of another state which had appointed an agent within the state of suit to accept service of process. The suits here were instituted against a domestic corporation and no question of consent to suit was involved. Not having been instituted in the District in which defendant had its principal office, they were properly dismissed. Judicial Code, sections 51 and 52, 28 U.S.C. A. §§ 112 and 113; Galveston, etc., R. Co. v. Gonzales, 151 U.S. 496, 14 S.Ct. 401, 38 L.Ed. 248; Dobie on Federal Procedure p. 482; Simpkins Federal Practice p. 371. The effect of the Neirbo case is merely to permit suit against a corporation in a federal district in which it has appointed an agent to accept service of process, and in which, if sued in a state court, it might remove to a federal court. No such right of removal exists in diversity of citizenship cases if a corporation be sued in a court of the state of its residence. Judicial Code, § 28, 28 U.S.C.A. § 71. If plaintiff desires to sue in a federal court of that state the provisions of the venue statute must be followed, as in such case there is no appointment of a process agent upon which waiver of such provisions can be predicated. Affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_respond1_1_3	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. BECKER v. ELECTRIC SERVICE SUPPLIES CO. No. 6449. Circuit Court of Appeals, Seventh Circuit. July 19, 1938. Donald M. Carter, of Chicago, Ill., for appellant. Gardner & Hitzeman, of Chicago, Ill.,, for appellee. • Before MAJOR and TREANOR, Circuit Judges, and LINDLEY, District Judge. MAJOR, Circuit Judge. . This action was brought by John Walter Becker, plaintiff, against Electric Service-Supplies Company, defendant, for infringement of United States Letters Patent No. 1,660,316, applied for December 20, 1918- and issued to the plaintiff February 28, 1928. The patent relates to a resurfacing device for commutators of electric machines. These commutators are made of sections of copper with insulating material, such as mica, between them and the wires of the armature of the machine, which are formed into loops, their ends connected with the commutator bars. The device consists of a block of abrading material in a finely-divided state, there being means for decreasing the adhesiveness of the binder so as to cause the block to wear down readily without causing the metal removed from the -commutator to adhere to the block and thereby producing a short circuit between the bars. Claim 5 only is involved in the suit. The court below found the patent in suit to be invalid and exonerated the defendant from the charge of infringement. The appeal is from this decree. Numerous defenses were relied upon, including that of public use and sale more than two years prior to the time the Becker application was filed, but in view of the ■conclusion we have reached, there will be no occasion to consider any of the other defenses. The court below found, as a fact ■“the invention of the Becker Patent No. 1,660,316 was in public use and on sale more than two years prior to the time the Becker application was filed.” Defendant was merely the distributor of the article charged to infringe, the same being manufactured by one, Frank Cass. The testimony offered In support of the defense of prior use and sale, while uncontradicted, was almost entirely oral. Cass, who was a stationary engineer by profession, testified that in the year 1914 he rented a small factory at 209 Ashland Avenue, Chicago, and commenced the making of commutator grind stones or blocks. His device consisted of a small wheel about an inch thick to be held stationary against the commutator of the electric machine while the same was turning under its own power, after which he would apply sandpaper and brush it off. He testified as to the ingredients used which enabled him to produce the desired results, and related in detail the persons and concerns to whom he sold his commutator stones, commencing with the year 1914. In 1917, his factory was moved from 209 North Ashland Avenue to Pratt Boulevard.. Among the concerns whom he listed as his customers were the Sterling Garage and the Schoenhofen Brewing Company, both of whom were purchasers of the device in question in 1914. Two invoices were offered in evidence, one dated February 5, 1916, the other May 5, 1917, disclosing sales by Cass Commutator Grinding Blocks, 209 N. Ashland Avenue to the Sterling Garage, and it is testified by Cass that the articles described in these invoices are the blocks charged to infringe. In fact, according to the testimony of Cass, the blocks now manufactured by him and charged to infringe, are the same so far as ingredients and material are concerned, as those manufactured by him in 1914 and from that time down to the present. Cass is corroborated as to the manufacture and sale of these stones by a Mr. Ford and a Mr. Schirber. The former was one of the owners of the Sterling Garage in 1914 and testified as to the purchase of stones from Cass during that year and that he has continued to purchase the stones down to the present time. Mr. Schirber testified that in the years 1914, 1915 and 1916, he was employed by the Schoenhofen Brewing Company and corroborated Cass as,to the sale of the commutator stones as related. All three of these witnesses fixed the date when these stones were first manufactured and sold by reference to events which took place at or near the same time. The testimony of these witnesses is uncontradicted, but it is the contention of appellant that oral testimony uncorroborated by records, is, as a matter of law, insufficient to sustain such defense. A number of authorities are cited as sustaining such contention. Typical of the language often employed is that found in Deering v. Winona Harvester Works, 155 U.S. 286, 15 S.Ct. 118, 39 L.Ed. 153, where the court on page 300 15 S.Ct. on page 123 said: “Taking this evidence together, it falls far short of establishing an anticipation with that certainty which the law requires. As we have had occasion before to observe, oral testimony, unsupported by patents or exhibits, tending to show prior use of a device regularly patented, is, in the nature of the case, open to grave suspicion.” In Eibel Process Co. v. Minnesota & Ontario Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523, the court on page 60, 43 S.Ct. on page 327 said: “The oral evidence on this point falls far short of being enough to overcome the presumption of novelty from the granting of the patent. The temptation to remember in such cases and the ease with which honest witnesses can convince themselves after many years of having had a conception at the basis of a valuable patent, are well known in this branch of law, and have properly led to a rule that evidence to prove prior discovery must be clear and satisfactory.” In Waterloo Register Co. v. Atherton, 9 Cir., 38 F.2d 75, where the court was presented with a similar situation, it is said: “The rule is well settled, of course, that a defense of this kind must be proved with certainty and beyond reasonable doubt; but whether the proof measures up to that requirement, or not, is ordinarily for the trial court to determine. An appellate court cannot interfere, unless it can be said as a matter of law that the testimony is legally insufficient to establish the defense with the requisite degree of certainty.” Another case cited and relied upon by both parties is that of Corona Cord Tire Company v. Dovan Corp., 276 U.S. 358, 48 S.Ct. 380, 72 L.Ed. 610, where the court on page 382, 48 S.Ct. on page 387 said: “Kratz was not seeking a patent. He inferred, with reason, that D. P. G. would not make a successful business accelerator because of its then cost. He is wholly disinterested pecuniarily in the result of this case. The fact that he is the only witness is not fatal or any reason for denying [the] weight [of his testimony] in connection with other circumstances.” It is true, as pointed out by plaintiff, the court in the paragraph following that just quoted, found that the oral testimony was corroborated by records, but it seems apparent that if oral testimony is insufficient to establish such defense, as a matter of law, there could have been no excuse for the court using the language above quoted. We do not think it can be held, as a matter of law, that oral testimony is insufficient. True, such testimony may be regarded with suspicion and must be subjected to a close scrutiny. The reason, therefore, is obvious, but this does not mean that such testimony is insufficient under any and' all circumstances. After all, the trial court who saw and heard the witnesses is in a better position to determine their credibility and the weight to be attached to their testimony, than is a reviewing court. As was said in Twyman v. Radiant Glass Co., 8 Cir., 56 F.2d 119, page 120 r “The court below found that the device-manufactured and sold by the appellee was-in public use for more than two years prior to the date of appellant’s application for patent. If this finding is supported by the-testimony, the decree of dismissal was proper, whether there was infringement, or whether the patent was otherwise valid or not.” To the same effect, see Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; International Shoe Co. v. Rubins, et al., 7 Cir., 74 F.2d 432; Larson v. Crowther, 8 Cir., 26 F.2d 780, 787. We have read the testimony as found in the record and are convinced it is sufficient to .sustain the finding as made by the trial court. Three witnesses, two of whom were disinterested, testified in what seems, to us a rather convincing manner of 'the prior use and sale as alleged by the defendant. The testimony of Cass finds some corroboration by reason of the invoices, to-which reference has been made. These witnesses are unimpeached and uncontradicted.. While their testimony, from its very nature, is .not so satisfactory as might be desired, yet we are of the opinion it is sufficient to-sustain the finding as made by the court below. Under such circumstances, there is no occasion for us to consider other defenses. The decree is affirmed. “5. A resurfacing device for commutators of electric machines comprising a block' of abrading material in a finely-divided state, and formed into a porous structure, an abrasive binder for holding .said abrading material together, and means for decreasing the adhesiveness of the binder so as to cause the block to wear down readily without causing the •metal removed from the commutator to adhere thereto to produce a short circuit between the commutator bars.” Deering v. Winona Harvester Works, 155 U.S. 286, 301, 15 S.Ct. 118, 39 L. Ed. 153; T. H. Symington Co. v. National Malleable Castings Co., 250 U.S. 383, 386, 39 S.Ct. 542, 63 L.Ed. 1045; Eibel Process Co. v. Minnesota & Ontario Co., 261 U.S. 45, 60, 43 S.Ct. 322, 67 L. Ed. 523; Washburn & Moen Manufacturing Company et al. v. Beat ’Em All Barbed-Wire Company et al., 143 U.S. 275, 12 S.Ct. 443, 450, 36 L.Ed. 154; Cline Electric Mfg. Co., Westinghouse Electric & Mfg. Co., and Tribune Co. v. Kohler, 7 Cir., 27 F.2d 638. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_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, Plaintiff-Appellee, v. Charles Kyle GRAY, Defendant, Argonaut Insurance Company, Movant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barbara Ann GASTON, Defendant, Argonaut Insurance Company, Movant-Appellant. Nos. 77-2299 and 77-2300 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 2, 1978. Janet Reno, Miami, Fla., for movant-appellant in both cases. J. V. Eskenazi, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee in both cases. Before RONEY, GEE and FAY, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir 1970, 431 F.2d 409, Part I. PER CURIAM: In this appeal, the appellant Argonaut Insurance Company asserts that justice did not require the enforcement of two $100,000 appearance bond forfeitures entered against it in the court below and that these bonds should have been set aside under Fed.R.Crim.P. 46(e)(2). We decline to address this question, and consider instead whether the lower court abused its discretion in refusing to set aside the forfeitures. After careful review of the testimony, much of it taken confidentially in camera, we conclude that the lower court did not abuse its discretion, and affirm. This Court has consistently held that the standard of review for a district court’s refusal to remit part or all of a bond forfeiture is whether the district court abused its discretion. United States v. Shelton, 444 F.2d 522, 523 (5th Cir. 1971); Brown v. United States, 410 F.2d 212, 218 (5th Cir. 1969). We are convinced that a similar standard should be applied when a district court refuses to set aside a bond forfeiture. See United States v. Foster, 417 F.2d 1254, 1256 (7th Cir. 1969). While reasonable minds could have concluded, contrary to the decision of the court below, that justice did not here require a bond forfeiture, we are not persuaded that the lower court abused its discretion in reaching the decision that it did. AFFIRMED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_immunity	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" 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". John M. RAY, Plaintiff-Appellant, v. Earl HUDDLESTON, John Sloan and Frank Summers, Defendants-Appellees. No. 15368. United States Court of Appeals Sixth Circuit. Jan. 14, 1964. Douglas E. Robertson, Bowling Green, Cancan & Allender, Bowling Green, Ky., on brief), for appellant. Paul R- Huddleston, Bowling Green, Ky. (Huddleston & Huddleston, Bowling Green, Ky., on brief), for appellees. Before O’SULLIVAN, Circuit Judge, and McALLISTER and MAGRUDER, Senior Circuit Judges. PER CURIAM. . „ . T M t> , n Appellant, John M. Ray, sued appellee a county judge of the county of Clinton, Yr x , . n , . , , Kentucky, had invaded Ray's civil rights- , . . . t> j? , , by imprisoning Ray for contempt of Justifies his nresenee in the Federal CQurtg b asserting that the Rights Statutes (§§ 1983, 1985, U.S.C.A. Title 42; § 1343, U.S.C.A. Title 28) permit him to come here. UPon tnal of the cause> a verdict was' directed in favor of defendant Huddleston, and judgment entered thereon. Ray . „ . . , asks for a new trial. Ray had been acting as the Administrator of the Clinton County War Memorial Hospital. By action of the Clinton County Fiscal Court, Ray’s position as such was to be terminated on February 2, 1962. He disputed the validity of such action. When Ray’s successor sought to take over the office and authority of administrator of the hospital, Ray resisted. His resistance was not limited to written or verbal protest. On the day his successor was to take over, Ray arrived at his previous post of duty ready to hold it against intrusion by his successor. He proceeded to do so. Confusion in the administration of the hospital ensued and its good order and the welfare of its patients were seriously impaired. Described events could, and probably did, amount to a breach of the peace. This condition continued for some days. Through official sources, reports of this situation came to Earl Huddleston, as judge of the County Court of Clinton County. Acting under § 25.150 of Kentucky Revised Statutes and under Section 32 of the Kentucky Code of Practice in Criminal Cases, Judge Huddleston, on February 7, 1962, convened a court of inquiry and summoned Ray to appear. Ray appeared with counsel and, on this appeal, it is not disputed that, by demeanor and words, he publicly displayed his contempt for the authority and person of Judge Huddleston. Ray was summarily committed to jail for six hours. On this appeal, appellant’s attack on the action of the county judge is his contention that the judge was without jurisdiction to conduct the court of inquiry and, therefore, was without authority to punish Ray for contempt. We are of the opinion that the county judge had authority to convene and conduct the court of inquiry and, incident thereto, to impose punishment for contemptuous conduct committed in his presence. Bryant v. Crossland (Ky. 1918), 182 Ky. 556, 206 S.W. 791. Cf. Johnson v. MacCoy, 278 F.2d 37 (CA 9, 1960). A more detailed discussion of the facts and issues involved in the case before us will be found in the opinion of District Judge Mac Swinford denying Ray’s motion for new trial. The opinion is reported as Ray v. Huddleston, 212 F.Supp. 343. (W.D.Ky.1963) We agree, also, with that opinion’s holding that judicial immunity foreclosed a judgment of liability against appellee Huddleston for his conduct of the proceedings of the court of inquiry. Judgment affirmed. . KRS 25.150 provides: “The county judge is a conservator of the peace within his county, may administer oaths and may exercise all the power of a justice in penal and criminal proceedings, and singly hold a court of inquiry in such proceedings.” . Criminal Code § 32 provides: “A magistrate, if satisfied that any public offense has been committed,- shall have power to summon before him any person he may think proper for examination on oath concerning it, to enable him to ascertain the offender, and to issue a warrant for his ' arrest.” Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_3_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. SPANG et al. v. WATSON, Commissioner of Patents. No. 11508. United States Court of Appeals District of Columbia Circuit. Argued March 13, 1953. Decided May 7, 1953. Petition for Rehearing Denied August 21, 1953. Mr. Cedric W. Porter, Boston, Mass., pro hac vice, by special leave of Court, with whom Messrs. Nathan Heard, Boston, Mass., and Lee L. Townshend, Washington, D. C., were on the brief, for appellants. Mr. H. S. Miller, Attorney, United States Patent Office, with whom Mr. E. L. Reynolds, Solicitor, United States Patent Office, was on the brief, for appellee. Before EDGERTON, FAHY . and WASHINGTON, Circuit Judges. FAHY, Circuit Judge. Appellants sued the Commissioner of Patents under Rev.Stat. § 4915, to register .the words “Cube Steak” as a trade-mark for meat tenderizing machines. Appellants say the term is “a mark used by the applicant which has become distinctive of the applicant’s goqds in commerce” within the meaning of § 2(f) of the Lanham Trade-Mark Act, 60 Stat. 429 (1946), 15 U.S.C.A. § 1052(f). The District Court found in substance that this term has not become distinctive of appellants’ goods. It found that appellants’ predecessor used it before them; and appellants “have made great efforts toward policing” it; but it now designates a type of meat that comes from many different sources. The evidence supports these findings. Appellants do not deny that the term “Cube SteaJk” is often used to designate a type of meat regardless of source. Notwithstanding that the term originally designated appellants’ machines and the product of these machines, appellants did not acquire an exclusive right to apply the name after it became generic and no’ longer distinctive of their goods. Singer M’f’g Co. v. June M’f’g Co., 1896, 163 U.S. 169, 16 S.Ct. 1002, 41 L.Ed. 118; Kellogg Co. v. Nat. Biscuit Co., 1938, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73. We need not consider whether, as the District Court thought, it necessarily follows that, “Since ‘Cube Steak’ is the generic name of a variety of meat, it is equally the generic name of the machine which makes that variety of meat.” If the use of the words “Cube Steak” as a trade-mark were limited to the machines and if it were found, on sufficient evidence, that customers for the machines regarded the mark as pointing distinctly to appellants as the producers, perhaps a limited registration might he possible. As a common law case affording protection of this limited character, see Bayer Co. v. United Drug Co., D.C.S.D.N.Y.1921, 272 F. 505. The cases of Singer M’f’g Co. v. June M’f’g Co., supra, and Kellogg Co. v. Nat. Biscuit Co., supra, read with Hanover Starr Milling Co. v. Metcalf, 1916, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713, and United Drug Co. v. Theodore Rectanus Co., 1918, 248 U. S. 90, 39 S.Ct. 48, 63 L.Ed. 141, are not pieclusive of such limited registration, particularly when they are considered in the light of the liberalizing provisions of the Lanham Trade-Mark Act. In a proper case the statute itself authorizes limitations and conditions upon registration: 60 Stat. 430 (1946), 15 U.S.C.A. § 1057(a). See, also, Walgreen Drug Stores v. Obear-Nester Glass Co., 8 Cir., 1940, 113 F.2d 956, 960, certiorari denied, 311 U.S. 708, 61 S.Ct. 174, 85 L.Ed. 459, rehearing denied, 311 U.S. 730, 61 S.Ct. 391, 85 L.Ed. 475. But, as indicated in Kellogg Co. v. Nat. Biscuit Co., 305 U.S. at page 118, 59 S.Ct. at page 113, the application of this doctrine of secondary meaning requires that not merely “a subordinate meaning” but “the primary significance of the term in the minds of the consuming public,” here those in the market for the machine, “is not the product but the producer.” Appellants failed to show clearly that this is the factual situation. On the contrary, the finding of the court that appellants “have not shown that the mark ‘Cube Steak’ as used by them, has become distinctive of plaintiffs’ [appellants’] goods in commerce”, is entirely consistent with the evidence, even though “goods in commerce” be considered as the machines only and not the tenderized meat, and the public be considered only as those who might purchase the machines. Affirmed. . Rev.Stat. § 4915 (1875), as amended 35 U.S.C. § 63 (1946), has since been repealed by Section 5, Act of July 19, 1952, c. 950, 66 Stat. 815. It has been replaced by 66 Stat. 803, 35 U.S.C.A. §§ 145, 146: . “No trade-mark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it”, so far as here pertinent, “ * * * is merely descriptive”; and even if descriptive the mark may be registered if it “» * * has become distinctive of the applicant’s goods in commerce. * * *” § 2(f). 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_othjury	B	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. Wendell BLOUNT, Defendant-Appellant. No. 72-2040. United States Court of Appeals, Sixth Circuit. Argued April 2, 1973. Decided June 8, 1973. John W. Peck, Circuit Judge, filed concurring opinion. Frederick Taft, Cleveland, Ohio, for defendant-appellant; James D. London (Court Appointed), Public Defender, Cleveland, Ohio, on brief. Clarence B. Taylor, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Charles A. Caruso, Dept, of Justice, Atty., Office for Drug Abuse Law Enforcement, Cleveland, Ohio, on brief. Before PECK, McCREE and LIVELY, Circuit Judges. McCREE, Circuit Judge. We consider an appeal from a judgment following jury convictions on both counts of a two-count indictment charging illegal distribution of heroin, in violation of 21 U.S.C. § 841(a)(1). Appellant was sentenced to three years imprisonment on each count, to be served consecutively. Five issues are presented on appeal. Two issues attack the sufficiency of the evidence to refute the defense of entrapment. We determine that they are without merit. The record contains ample evidence to support the finding that appellant was not entrapped and it was therefore proper to submit that issue to the jury. A third contention assigns error to the trial judge’s failure to give a limiting instruction about testimony of criminal acts not charged in the indictment, offered solely to negative appellant’s contention that he had been entrapped. Appellant’s counsel did not request a limiting instruction either at the time the evidence was introduced or before the ease was submitted to the jury. Since the testimony was relevant to an issue in the case, we find no error in the court’s failure to give a limiting instruction sua sponte. Appellant’s remaining assignments of error have more substance. During the voir dire examination of the prospective jurors, the district court refused appellant’.s request to ask if they could accept the proposition of law that a defendant is presumed to be innocent, has no burden to establish his innocence, and is clothed throughout the trial with this presumption. Appellant contends that this refusal constituted reversible error. We agree. Federal Rule of Criminal Procedure 24(a) invests wide discretion in trial judges in determining the questions to be asked of veniremen, and the prevailing rule is that the court’s determination about the questions to be put to the jury will not be disturbed without a clear showing of abuse of discretion. 5A Moore’s Federal Practice ¶ 47.06 (2d ed. 1967); United States v. Crawford, 444 F.2d 1404 (10th Cir. 1971); United States v. Owens, 415 F.2d 1308 (6th Cir.), cert. denied, 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 406 (1969). The primary purpose of the voir dire of jurors is to make possible the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel. Wright, 2 Federal Practice and Procedure ¶ 382 (1969). It follows, then, that a requested question should be asked if an anticipated response would afford the basis for a challenge for cause. See e. g., United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (D.C. Cir. 1964); United States v. Napoleone, 349 F.2d 350 (3d Cir. 1965). Certainly, a challenge for cause would be sustained if a juror expressed his incapacity to accept the proposition that a defendant is presumed to be innocent despite the fact that he has been accused in an indictment or information. It is equally likely that careful counsel would exercise a peremptory challenge if a juror replied that he could accept this proposition of law on an intellectual level but that it troubled him viscerally because folk wisdom teaches that where there is smoke there must be fire. Accordingly, the failure of the trial judge to ask the question upon request was erroneous and since the failure may have resulted in the denial of an impartial jury, the error cannot be dismissed as harmless. See Brown v. United States, supra (Burger, J.). It matters not that the putting of the question might also, as appellee contends, have constituted anticipatory argument to precondition the jury. This is an unavoidable consequence of the voir dire jury examination. The remaining contention concerns the denial of appellant’s request for a continuance. At arraignment on June 8, 1972, without benefit of counsel, appellant pled not guilty and assured the district court that he intended to retain his own attorney prior to trial. To prevent delays and ensure a speedy trial, the district court appointed the Cleveland Public Defender’s Office to act as defense counsel of record and marked the case for trial on June 19, eleven days later. The Defender’s Office was promptly notified that same day, and appellant was told that the court would permit the substitution of counsel once a private attorney was retained. Appellant contends that such a short time to obtain counsel and prepare a defense constituted a violation of due process. The trial judge’s concern to expedite the trial is most commendable, but expedition should not be pursued at the cost of the quality of justice. Fundamental to due process is the effective assistance of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963). And a defendant with sufficient means should be afforded the opportunity to employ counsel of his own choice. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L. Ed. 680 (1942); United States v. Balk, 318 F.2d 288 (6th Cir. 1963). Blount lived in Akron, was incarcerated before trial in Youngstown, and was scheduled to be tried in Cleveland. These cities form the vertices of a scalene triangle, one leg of which is 35 miles long, another 50, and the third 70. Appellant was afforded only 11 days, with two intervening weekends (seven work days), within which to obtain counsel from a jail cell, in a city not his residence. And it does not appear that he had ready access to a telephone and a legal directory. Because of our disposition of the voir dire issue, we find it unnecessary to decide whether the denial of a continuance requires us to follow Balk, supra, where we found a denial of Sixth Amendment rights, or United States v. Sisk, 411 F.2d 1192 (6th Cir.), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 509 (1969), where we found no error. Reversed and remanded for a new trial. Question: Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_two_issues	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. WRIGHT v. WILSON. No. 9017. Circuit Court of Appeals, Third Circuit. Argued Feb. 8, 1946. Decided March 5, 1946. William W. Mentzinger, Jr., of Philadelphia, Pa. (Elliott Marshall, of Front Royal, Va., on the brief), for appellant. David A. Saltzburg, of Philadelphia, Pa., (Morris W. Kolander, of Philadelphia, Pa., on the brief), for appellee. Before MARIS, GOODRICH, and O’CONNELL, Circuit Judges. GOODRICH, Circuit Judge. This is an action brought in federal ■court by reason of diversity only, to recover for injuries sustained by the plaintiff when he was struck by a motor car operated by the defendant. There was a verdict for the defendant in the District Court. The plaintiff charges several errors in the trial. Only one of them presents a question which requires discussion. While the litigation was pending the defendant died. The plaintiff claims that he is now the only living eyewitness to the accident. His testimony with regard to it was rejected by the trial judge. The correctness of this course is the interesting and important question in the case. Our starting point now is Rule 43 (a) of the Rules of Civil Procedure. It is there provided that all evidence comes in if admissible under United States statutes, or under theretofore existing rules of United States equity courts or state law, whichever favors the reception of the evidence. It has been correctly pointed out that this is a rule of admissibility not exclusion. The evidence comes in under whichever one of the tests of admissibility is most favorable. Is the proffered testimony to be allowed under any of the criteria set out in Rule 43(a)? It certainly is not by the law of Pennsylvania. The Pennsylvania statute is explicit in prohibiting the testimony of the survivor. It applies to tort actions as well as contract though the latter may predominate. Adversity of interest is the test. Death is only the line of demarcation. The Pennsylvania Supreme Court has sharply indicated that the plain language of the statute is not to be circumvented. So far as Pennsylvania law is concerned, it is clear that the door is tightly closed against admissibility of the proffered testimony. The federal rule cannot he so tersely stated, though, as will he seen, the various figures add up to the same sum as that found by Pennsylvania statutes and decisions. At common law both the parties to a suit were incompetent as witnesses on the ground of interest. Greenleaf notes the general rule of the common law with the statement that the rule of the Roman Law was the same. An encyclopedia of the same year as the Lewis edition of Greenleaf relates the common law rule specifically to survivors. Chamberlayne some years later sets out the rule and its rationale. More recently Jones in speaking of the same rule adds that it applied both in chancery and at law. And finally Wigmore succinctly emphasizes the fact that a disqualifying interest concept was behind the common law rule of exclusion of parties as witnesses. In 1862 a federal statute referred'the rule of admissibility to state law. This first statutory period persisted until 1864 when another federal statute prohibited exclusion of any witness on the ground of interest. This general admissibility rule was similar to that of the states. While it changed the common law, it was open to an exception so far as survivors were concerned. This will be discussed later. The second statutory period ended a year later in 1865 when the federal statute was amended to indicate specifically that survivors were still incompetent as party witnesses, just as at common law. The survivor rule remained as an evolutionary vestige when the general statutes changing the common law rule of party witness incompetency were passed. This third period which lasted until 1906, saw passed in 1878 the Competency of Witnesses Act which “evolved from [the] three statutes passed in 1862, 1864 and 1865 * * * ’’. This act did not change the federal law with respect to a survivor’s testimony. In 1906, however, a basic change was made. The laws of the states were made controlling. This took the situation back to the first statutory period mentioned. Otherwise, however, this fourth period did not change the tenor of the law, for as will be pointed out, the state courts also barred the testimony of party survivors. In 1938, when the new federal rules came into effect, the situation was once again altered. The nature of this change has been discussed. This fifth period brings the statutory situation up to date. The state statutes which changed the common law did so only to a limited extent. While parties were no longer excluded as witnesses, an exception was made with respect to survivor parties. As to them the common law rule still applied. The change was gradual but today pervades almost all the states. Earlier writers speak of the exception obtaining in “most states.” A later commentator makes it clear that the exception now is firmly established in all but six of the states. The inevitable conclusion is that whatever door one tries it is firmly locked against the admissibility of the proffered testimony in this case. There never has been a federal rule admitting such evidence because the course of federal legislation has either been to make only incomplete changes in the original common law or to refer the matter to state law by which, as shown, the evidence is inadmissible. There is no help to be gained from the reference to suits in equity, the language used in Rule 43 (a) because of lack of application and because the survivor rule principle applied in equity suits as well as actions at common law. The only conclusion we can reach is to say that the testimony offered by a survivor of the accident in this case is not admissible against his opponent. We reach the result without enthusiasm. The rule excluding a survivor’s testimony seems to stand in the almost unique situation of being condemned by all of the modern writers on the law of evidence. It is said to be as unsound and undesirable as the rule excluding the testimony of parties of which the survivor rule is a part. But we believe this to be a case where a rule so thoroughly established through many generations of judicial history should be removed by legislative action or court rule which applies generally and not by judicial legislation against a party in a particular case. Affirmed. 28 U.S.C.A. following section 723c. The appropriate section reads: “Rule 43. Evidence “(a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be del ermined in like manner.” 3 Moore, Federal Practice (Supp.1945) 03 § 43.02 (referring back to page 3004) “Tile cast of subdivision (a) [of Rule 43J is toward admissibility not exclusion.” Green, “The Admissibility of Evidence Under The Federal Rules”, (1941), 55 Harv.L.R. 197, 203, “Perhaps the simplest interpretation is to imply a provision that the evidence is to be excluded. But isn’t such a reading superficial? * * * The rule merely provides that if any of the three makes the evidence admissible it shall be admitted.” United States v. Aluminum Co. of America, S.D.N.Y.1938, 1 F.R.S. 43a.3, Case 1 “[Rule 43(a)] is intended to liberalize admissibility of testimony, but has nothing to do with what should bo excluded.” See also Seward v. Nissen, D.C.Del.,1942, 2 F.R.D. 545 and Iloltzoff, New Federal Procedure And The Courts, 1940, 120. 28 P.S. § 322 reads in part: “Nor, where any party to a thing or contract in action is dead * * * shall any surviving or remaining party to such thing or contract, or any other person whoso interest shall be adverse to the said right of such deceased * * * bo a competent witness to any matter occurring before the death of said party * * , The remainder of the section as well as § 825 set out circumstances where the above language of exclusion does not apply. However, none of those circumstances fit tbe present facts. Lockard v. Vare, 1911, 230 Pa. 591, 595, 79 A. 802. Chapman, Principles of the Law of Evidence, 1930, 362 “It is an adverse interest, not survivorship or adverse testimony which disqualifies a witness. Edmundson’s Estate, 259 Pa. 429, 436, 103. A. 277, 2 A.L.R. 1150.” Id. 364. “An interested witness may testify to faets existing after death of the other party, even though by inference the existence prior to death is shown. * * * Krepps v. Carlisle, 157 Pa. 358, 27 A. 741 Keating v. Nolan, 51 Pa.Super. 320.” Id. 365: “The survivor cannot make himself competent by calling the living witness and then attempting to testify. * * * As was said in Cake v. Cake, 162 Pa. 584, 585, 29 A. 797, ‘The living witness whose testimony is to make competent the surviving or remaining party to the-record, must be called in the interest- of and by the party representing the right of the deceased. The calling of such witness by the adversary could not have been in contemplation of the Legislature. It was not the intention of that Act to provide so sure and easy a method of removing the bar of incompetency.’ ” See also Patterson v. Hughes, 236 Pa. 315, 318, 84 A. 829. 1 Greenleaf, Treatise on the Law of Evidence, Lewis’s Ed., 1899, § 329: “Common Law Did Not Allow a Party to the Record tb Be a Witness. — And first, in regard to parties, the general rule of the Common Law is, that a party to the record, in a civil suit, cannot be a witness either for himself, or for a co-suitor in the case. The rule of the Roman Law was the same. Omnibus in re propria dicendi testimonii facultatem jura submoverunt.” 11 American and English Encyclopaedia of Law, 2d Ed., 1899, 543: “4. Transactions with Deceased Persons — a. At Common Law. — As the common law disqualified all persons from testifying in any suit in which they had an interest, Tt follows that at common law a person would be incompetent to testify against a representative of a deceased person if the witness were interested in the result.” 5 Chamberlayne, Treatise on the Modern Law of Evidence, Joyce’s Ed., 1916, § 3669 “Under the practice at common law it was deemed that persons who were interested or were parties to the proceedings, were, by reason of such fact, so under the temptation to testify falsely that they should be rejected.” 3 Jones on Evidence Civil Cases, 4th Ed., 1938,1305, § 727: “The authorities announcing the earlier common law held that parties to a suit' were incompetent ,as witnesses therein.” 1308, § 728 “ * * * it was the gen-' eral rule in chancery, as at law, that parties were not competent witnesses * 2 Wigmore on Evidence, 3rd Ed., 1940, § 577: “The notion of interest at common law applied of course to the parties to the suit, for their interest in the event of the litigation was obviously the most marked. “That this general principle of disqualifying interest was the real ground of their exclusion from testifying in their own favor is clear; and certain details of the rule rested directly on this- theory, —for example, the consequence that a mere titular or nominal party was admissible, or a party against whom judgment had gone by default. The hardship and the anomaly, however, of this ground for exclusion were even more emphatic and apparent than in the case of ordinary interested persons.” 12 Stat. 588, July 16, 1862, ch. 189, sec. 1. “That the laws of the State in which the court shall be held shall be the rules of decision as to the competency of witnesses in the courts of the United States, in trials at common law, in equity, and admiralty.” See 1 Wigmore on Evidence, 3rd Ed., § 6a, for a complete statutory classification. 13 Stat. 351, July 2, 1864, ch. 210, sec. 3. “That in the courts of the United States there shall be no exclusion of any witness pn account of color, nor in civil actions because he is a party to, or inter- . ested in, the issue tried.” See 1 Wigmore on Evidence, 3rd Ed., § 6a. 13 Stat. 533, Mar. 3, 1865, ch. 113. That chapter 210, sec. 3, be “amended by adding thereto the following proviso: Provided, further, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” See 1 Wigmore on Evidence, 3rd Ed., § 6a. R.S. (Title 13, eh. 17) sec. 858, 28 IT. S.G.A. note. “In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: Provided, That in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by tlie opposite party, or required to testify thereto by the court. In all other respects, the laws of the State in which tho court is held shall bo the rules of decision as to the competency of witnesses in tlie courts of the United States in trials at common law, and in equity and admiralty.” See 1 Wigmore on Evidence, 3rd Ed., § 6a. 1 Wigmore on Evidence, 3rd Ed., 178, § 6a. 34 Stat. 618, June 29, 1906, ch. 3608, 28 U.S.C.A. § 631 (Amended Revised Statutes 858 as follows) “The competency of a witness to testify in any civil action, suit, or proceeding in the courts of the United States shall be determined by the laws of the State or Territory in which the court is held.” See 1 Wigmore on Evidence, 3rd Ed., § 6a. See note 1. 1 Wharton on Evidence, 2d Ed.1879, 414, § 466 “In most of tho statutes, cases are excepted where the suit is against executors or administrators, in which cases the surviving party to a contract is not permitted to testify; or as it is sometimes put, cases in which one of the parties to a contract is dead, in which case tho other party is not competent as a witness.” Sir J. F. Stephen, Digest of the Law of Evidence, Chase’s Ed.1892, 193 Art. 106, Note “And, moreover, there is established by statute in most States one important exception, prohibiting a party from testifying in an action against an executor or administrator concerning a transaction with tho decedent. These statutes differ in details * * .” 2 Wigmore on Evidence, 3rd Ed., § 578 “The scope of this modem rule excludes the testimony of the survivor of a transaction with a decedent, when offered against the latter’s estate.” The note to this adds “ * * the jurisdictions not recognizing this disqualification are half a dozen only.” An early authority, 1 Wharton on EVidence, 2d Ed.1879, 419, § 467, states: “The exception has been more cordially recognized from the fact that it rests on a principle which courts of equity concur in accepting.” More recently, we find in 1 Wigmore on Evidence, 3rd Ed.1940, 201, § 6c: “Under Rule 43, the ‘rules of Evidence heretofore applied in the courts of the United States on the hearing of suits in equity’ form the second choice to control. But where are these rules to be found? How vain will be the search for them has been shown ante, § 6. This part of Rule 43 seems to have little prospect of service.” The answers that have been found only serve to emphasize the lack of aid in the equity practice portion of Rule 43(a): 41 * * * reported federal equity decisions have almost never applied rules of evidence to specific cases. What will guide the court in its decision as to the propriety of including a given rule of admissibility in the equity system of evidence? The answer to this question is found in the maxim, aequitas sequitur legem. It is well established that generally speaking the law of evidence in courts of equity is identical with the law of evidence in courts ■of common law. [Citations noted]” ■Greene, “The Admissibility of Evidence Under The Federal Rules”, 1941, 55 Harv. L.Rev. 197, 201. See also note 11. Wigmore attacks it with characteristic vigor: “As a matter of policy, this survival of a part of the now discarded interest-qualification is deplorable in every respect; for it is based on a fallacious and exploded principle, it leads to as much or more false decision than it prevents, and it encumbers the profession with a profuse mass of barren quibbles over the interpretation of mere words.” 2 Wigmore on Evidence, 3rd Ed.1940, 697, § 578. “ * * * such a statute destroys the possibility of collecting honest claims by the living. It may prevent perjury of a •claimant but it does not prevent subornation of perjury by a claimant and perjury ‘by witnesses,” comment, Model Code of Evidence, 1942, 92. The Report of the Legal Research Committee of The Commonwealth Fund says “The ordinary statute has proved to be extremely cumbersome and difficult of operation.” The survey conducted by the committee led them to -the conclusion that “In a word the opposition to these [new or pr-oposed] statutes [abolishing the survivor rule] is in inverse ratio to experience with them * * See 2 Wig-more on Evidence, 3rd Ed.1940, 699, § 578a. Chamberlayne also sharply criticizes the survivor rule: “It seems strange that, in view of.the acknowledged and recognized advantages which have been gained by sweeping aside the barriers of the common law respecting competency, such a situation should be allowed to exist. It is the old giant, misnamed ‘policy of the law’ or 'public policy’, which for so long a time held judicial tribunals in its grasp * * which still remains tottering and feeble, apparently nearing the end.” 5 Chamberlayne, Treatise on the Modern Law of Evidence, 1916, § 3670. Bentham almost 100 years before, turned the hard light of reason on the whole common law rule of party disqualification: “In principle there is but one mode of searching out the truth: * * * Be the dispute what it may, see everything that is to be seen; hear everybody who is likely to know anything about the matter: hear everybody, but most attentively of all, and first of all, those who are likely to know most about it — the parties” Bentham, Rationale of Judicial Evidence, b. IX, pt. Y, e. I, Bowring’s Ed.1827, Vol. VII, pp. 487, 507. See 2 Wigmore on Evidence, 3rd Ed.1940, 693,.§ 577. The periodical literature yields an equally overwhelming opposition to the survivor rule. We may take a sample almost at random. Thus Callahan and Ferguson, “Evidence And The Federal Rules of Civil Procedure”, 1937, 47 Yale L.J. 194, 198: “Although the state competency statutes are generally satisfactory, there is one notorious exception which requires spe- • eial attention. Most states have seen fit to enact statutes whose devious forms clothe the common principle that the survivor * * * may not testify * * Question: Are there two issues in the case? A. no B. yes Answer:
songer_casetyp1_7-3-3	C	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". OHIO CASUALTY INS. CO. v. ROSAIA et al. No. 7413. Circuit Court of Appeals, Ninth Circuit. Jan. 7, 1935. Whittemore & Truseott, William J. Trus.eott, and Harold A. Seering, all' of Seattle, Wash., for appellant. Wright & Wright, Tucker & Tucker, and .Elias A. Wright, all of Seattle, Wash., for appellees. Before WILBUR and GARRECHT, Circuit Judges. Rehearing denied March 25, 1935. WILBUR,- Circuit Judge. Ralph Sidis and Seniuru Sidis-, husband and wife, recovered judgment for $4,050.80 in the superior court of King county, Wash., against George P. Rosaia and his wife and daughter for injuries received by Mrs. Sidis in an automobile accident. The defendants therein then brought this action in the District Court of the United States for the Western District of Washington, Northern Division, against the appellant, the Ohio Casualty Insurance Company, upon a policy of automobile casualty insurance issued April 10, 1920, to George P. Rosaia covering a Studebaker sedan owned by him and his wife, which policy was in effect at the time of the accident. Appellees recovered judgment against that. company for $6,157, being the full amount of the judgment recovered against them in the state court, together with their expenses incurred in that action. From this judgment of the District Court the insurance company appeals, claiming that it is released from liability because the insured failed to comply with the condition of the policy requiring immediate notice of the accident. Notice was not given the company until a year and a half after the accident. Mr. Rosaia heard nothing of the accident from the occupants of the Sidis car until February 7,1931, when appellees received a letter from a firm of attorneys in Seattle, Wash., stating that they represented Ralph and Seniuru Sidis, and that they would commence suit within five days unless some response to the alleged claim of the parties was received within that time. The appellees claim this was the first notice or knowledge they had as to any claim arising out of the accident or that any one was injured therein, or that any property was damaged. Upon receipt of this letter, Mr. Rosaia immediately reported the accident to the Ohio Casualty Company. Suit was brought by plaintiffs, with the result as stated above. The provision of the policy requiring notice of accident is as follows: “Upon the occurrence of an accident covered, involving injuries to persons, or damage to the property of others, by this policy, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the Home Office of the company. If any claim is made on account of such accident the assured shall give like notice thereof with full particulars. If thereafter suit is brought against the assured to enforce such claim, the assured shall immediately forward to the company every summons or other process served upon the assured, and tho company will at its own cost defend such suit in the name and on behalf of the assured.” In order to understand the appellees’ contention, it is necessary to state the facts concerning the accident. On July 7, 1929, Evelyn Rosaia, the daughter of George P. and Gilda Rosaia, with their knowledge and consent, was driving the automobile along a highway in the state of Washington when it collided with a.n automobile owned by Ralph Sidis, the husband of the injured woman. His car was driven by Albert Peha. At an intersection of roads, the Sidis car was suddenly stopped. The Rosaia ear, which had been following the Sidis car for about a mile, was 30 or 40 feet behind it when it stopped. Being unable to turn to the left because of the approach of another automobile, the Rosaia ear collided with the rear end of the Sidis car, knocking it ahead about 10 feet. The Sidis ear stopped with the two front wheels in a drainage ditch, which was about 18 inches deep. The Sidis aar was not seriously injured. It was pushed out of the ditch and driven away under its own power. There were two men and two women in tho Sidis car at the time of the accident. Miss Evelyn Rosaia, who was driving the Rosaia car at the time of the accident, testified that Mrs. Sidis told her “she had hurt her head. I asked to take her to a doctor, but she did not want to. When she walked across the road, I saw no evidence of injury. I saw no contusions or cuts about her head. * * * There was nothing in this accident that indicated that there was any damage done. Miss Middleton [Miss Rosaia’s companion in the car] and I went back to the nursery when we left and I told my father about the accident. T did not tell him that anyone had been hurt; but told him that I just hit a ear on the highway and that the only thing that happened was a bumper came off on our car.” The court submitted to the jury tho question of whether or not the notice given by the insured was timely under the policy. Wo will accept appellant’s summary of the several instructions given by the trial judge on this subject as a fair statement of their substance and effect, as follows: “The court instructed the jury that if the plaintiffs exercised due diligence in an attempt to ascertain whether injury had been suffered, and acting as reasonably prudent individuals concluded that there was no injury upon which a claim could be predicated, then there was no duty on their part to report the matter to the insurance company until they received notice of injury or claim. As the test of diligence, the court advises the jury to consider what was said, location of the injury claim at tho time of tho accident, and the nature of the injury upon which recovery was predicated.” This is in substantial accord with the statement in Ruling Case Law, vol. 14, p. 1330, § 503, as follows: “The requirement of a liability policy that notice shall he given on the occurrence of an accident does not require notice of an accidental occurrence where no' bodily injury is apparent and there is no reasonable ground for believing that a claim for damages will be made, and the duty to give notice does not arise until the subsequent facts would suggest to a reasonably prudent person that a liability might arise.” This instruction to the jury was a fair statement of the law. The Supreme Court of Washington in Larson v. Now Jersey Fidelity, etc., Co., 167 Wash. 86, 8 P.(2d) 985, 986, had under consideration a liability under a policy similar to that involved in the case at bar. In that case the policy required “immediate written notice of any accident.” The automobile driven by the insured collided with a pedestrian in the street. The insured testified: “I started to stop, and just as I bumped her — well, I did stop — she didn’t fall clear down, just about half way, and she grabbed the motormeter, and then she jumped up and ran for a street car, and I drove on out of the traffic and stopped again, but she was gone then. * * * I didn’t think she was hurt at all, she ran so fast when she got up.” The court approved the following definition of an accident as that term is used in the policy of insurance: “The word 'accident’ referred to in the policy, of which immediate written notice is required to ho made, does not mean every accident or mishap, casualty or misadventure occurring without bodily injury. If no apparent injury occurred from the mishap and there was no rea sonable ground for believing at the time that bodily injury would result from the accident, there was no duty upon the assured to notify the-insurer. If the accident would not in an ordinary mind induce a reasonable belief that it might result in bodily injury there was mr obligation on the part of the assured to notify the insurance company. The duty of the assured under such circumstances with respect to giving notice is performed if he gives notice within a reasonable time after he became aware in the exercise of ordinary care of the serious aspect of the injury suggestive of a possible qlaim for damages under the policy.” The Supreme Court of Nebraska in George v. Ætna Casualty & Surety Co., 121 Neb. 647, 238 N. W. 36, 37, had under consideration a public liability policy of insurance containing a requirement for immediate notice of an accident, as follows: “Upon the occurrence of an accident the assured shall give immediate written notice thereof with the fullest information obtainable to the company or its duly authorized agent. * * * Failure to give any notice required to be given by this policy within the time specified therein shall not invalidate any claim made by the assured if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.” The accident in that ease occurred January 20, 1926. Written notice of the accident was given in November or December, 1926', as soon as the insured ascertained that there was a claim of liability for the accident. The injured person had fallen on the sidewalk in front of plaintiff’s residence and broken her leg. The insured first learned of the accident several weeks after it occurred, but testified that at that time he did not know, and had no reason to believe or suppose, that he was in any way responsible or liable therefor. The court held that .the insured was not required to give notice of a trivial mishap or occurrence, although such mishap might afterwards result in serious injuries, citing Melcher v. Ocean Accident, etc., Corp., 226 N. Y. 51, 123 N. E. 81. The court also held that the word “immediate” “means in such convenient time as is reasonably necessary under the circumstances,” and held: “Notice is not required until such facts have developed as would suggest to a person of ordinary and reasonable prudence that liability may arise, and the requirement of notice is met by giving notice within a reasonable time after the injury presents an aspect suggestive of a possible claim for damages. • • • “The term 'immediate notice’ is to be reasonably construed in connection with the attendant circumstances, and in a case where there is no bodily injury apparent at the time of the accidental occurrence and there is no reasonable ground for believing that a claim for damages may arise therefrom, the assured is not required to give the insurer notice until the subsequent facts as to the injury are brought to his attention, and if notice is given immediately thereafter with full information as to the accident, such notice will be sufficient compliance.” The court held in that case that it was error for the trial judge to decide as a matter of law that the policy had been breached by the failure to give the notice required thereunder, and held that the question was one to be submitted to the jury, stating: “In such a ease the insured is entitled to have all of the facts and attendant circumstances, including the question of whether the facts known to the insured would require a person of ordinary and reasonable prudence to believe that liability to the injured person might arise, submitted to a jury for determination under proper instructions.” See, also, Melcher v. Ocean Accident & Guaranty Corp., supra. We think it unnecessary to discuss at length the numerous cases cited by the parties in their briefs on the general question of the effect of the requirement of notice of an accident such as contained in the policy involved in the ease at bar. The appellees contend that in deciding this question we should be controlled by the decision of the Supreme Court of Washington, in which state the contract was made and in which it was breached, citing a decision by this court. Community Bldg. Co. v. Maryland Casualty Co., 8 F.(2d) 678. We are satisfied, however, that under the general rule applicable in such policies the question in the case at bar was one for the jury to determine, and that the question was submitted to them on the proper instructions. Judgment affirmed. 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_const1	106	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. UNITED STATES of America, Plaintiff-Appellee, v. John William WILDER, a/k/a William John Wilder, a/k/a William Jay Wilder, Defendant-Appellant. No. 78-1725. United States Court of Appeals, Tenth Circuit. Argued Sept. 11, 1979. Decided May 19, 1980. Charles W. Daniels of Freedman, Boyd & Daniels, Albuquerque, N. M., for defendant-appellant. Thomas S. Udall, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., Albuquerque, with him on brief), for plaintiff-appellee. Before HOLLOWAY and BARRETT, Circuit Judges, and BRIMMER, District Judge. Of the District of Wyoming, sitting by designation. BARRETT, Circuit Judge. John William Wilder (Wilder) appeals from a jury conviction finding him guilty of violating 18 U.S.C. App. § 1202(a)(1), which declares it unlawful for a convicted felon to possess a firearm. The sole issue on appeal involves the correctness of the trial court’s refusal to grant Wilder’s motion to dismiss the charges based upon his contention that his prior felony conviction was constitutionally infirm. A factual background should aid in placing the issue in focus. Wilder was convicted, some ten years pri- or to the instant prosecution, in an Indiana state court, following a guilty plea to a felony charge of burglarizing a grain elevator. When the instant charge was brought, Wilder moved to dismiss on the ground that his prior Indiana felony conviction for burglary was invalid because (a) he was denied his Sixth Amendment right to counsel, and (b) his guilty plea was involuntarily entered because he had not knowingly and intelligently waived his constitutional rights. The District Court conducted a full hearing on Wilder’s motion to dismiss. Wilder testified at the hearing that following his arrest in Indiana: he requested the services of an attorney; thereafter he was provided the services of Attorney Jack Richert who was then deputy district attorney for the county, counsel for Wilder’s wife in a pending divorce action, and a part time probation officer for the district court; that because of the “conflicts” seen by Wilder, he (Wilder) notified Richert that he did not wish to be represented by him; that Richert did not advise Wilder of his right to other counsel and that no attorney other than the prosecuting attorney thereafter consulted with or saw Wilder; that after several discussions with the prosecuting attorney, Wilder entered a guilty plea to the burglary offense based on an understanding he reached with the prosecutor that he would be placed on probation; that the court ordered a pre-sentence report which was prepared and submitted by Attorney Richert, serving as probation officer; that the presentence report recommended that Wilder be sentenced to a term of from two to five years, and that this recommendation was adopted by the district court. No transcript of the Indiana state court plea proceedings is available. However, docket entries from that proceedings reflect that Wilder’s constitutional rights were explained to him, and that he acknowledged them. He specifically waived his right to be represented by counsel. The federal district court, following the hearing on the motion to dismiss, stated that he did not believe Wilder’s account of his alleged contacts with the deputy district attorney or Wilder’s request for other counsel. The court stated that he found the statements contained in the state court docket entries credible. After this case was orally argued, the parties were advised by Order of this Court entered on or about September 27, 1979, that all proceedings were abated pending final determination by the United States Supreme Court of Case No. 78-1595—Lewis v. United States, 591 F.2d 978 (4th Cir. 1979), cert. granted, 442 U.S. 939, 99 S.Ct. 2880, 61 L.Ed.2d 309 (1979). In that Order we recognized “the primary issue presented here is whether a defendant convicted of violation of 18 U.S.C. [App.] § 1202(a) which renders it unlawful for one convicted of a felony to possess a firearm may, in such proceeding, collaterally attack the prior conviction, valid on its face, based upon his asserted denial of counsel violative of his Sixth Amendment right.” We there observed that the majority of the Fourth Circuit Court of Appeals, in Lewis v. United States, supra, held that a defendant convicted under § 1202(a)(1), supra, cannot attack the constitutionality of an outstanding facially valid felony conviction, which, though arguably constitutionally invalid, has not been earlier invalidated for deprivation of right of counsel under the Sixth Amendment. The United States Supreme Court handed down its opinion in Lewis v. United States on February 27, 1980. See: - U.S. -, 100 S.Ct. 915, 63 L.Ed.2d 198. Thereafter, this Court requested that the parties in the instant case submit supplemental memoranda advising of their views “interpretive thereof [of Lewis v. United States, supra] and its applicability, if any, to the issues presented” in the instant appeal. Both parties have responded. They are in agreement that the Supreme Court decision in Lewis v. United States, supra, controls and that its holding requires affirmance of the District Court judgment in Wilder’s case. In Lewis v. United States, supra, the Supreme Court addressed the issue of “whether a defendant’s extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may constitute the predicate for a subsequent conviction under § 1202(a)(1) . ”-U.S. at pp.---, 100 S.Ct. at p. 916. The government there introduced in evidence an exemplified copy of the judgment and sentence entered in a 1961 Florida state court proceeding. Shortly before trial, the petitioner’s counsel informed the court that Lewis had not been represented by counsel in the 1961 Florida proceeding in violation of Gideon v. Wainwright, supra. The federal district court ruled that the constitutionality of the outstanding Florida conviction was immaterial with respect to Lewis’ status under § 1202(a)(1) as a previously convicted felon at the time of his arrest. The Court of Appeals affirmed by a divided vote. See: 591 F.2d 978 (4th Cir. 1979). The Supreme Court assumed, for its purposes, that Lewis was in fact without counsel during the 1961 Florida proceedings. Thus, both the statute involved and the constitutional issue raised in Lewis and Wilder are identical. The Supreme Court opined that: An examination of § 1202(a)(1) reveals that its proscription is directed unambiguously at any person who “has been convicted by a court of the United States or of a State . , . of a felony.” No modifier is present, and nothing suggests any restriction on the scope of the term “convicted.” “Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack].” United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978); see United States v. Naftalin, 441 U.S. 768, 772, 99 S.Ct. 2077, 2081, 60 L.Ed.2d 624 (1979). The statutory language is sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until the conviction is vacated or the felon is relieved of his disability by some affirmative action, such as a qualifying pardon or a consent from the Secretary of the Treasury. -U.S. at p.-, 100 S.Ct. at p. 918. The Supreme Court concluded that “ . . . § 1202(a)(1) prohibits a felon from possessing a firearm despite the fact that the predicate felony may be subject to collateral attack on constitutional grounds.” -U.S. at p.-, 100 S.Ct. at p. 92. In so holding, the Supreme Court reasoned: We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be used for certain purposes. See Burgett [Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967)], Tucker [United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972)], and Loper [Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972)], all supra. .The Court, however, has never suggested that an uncounseled conviction is invalid for all purposes. See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Loper v. Beto, 405 U.S., at 482, n. 11, 92 S.Ct. at 1019 (plurality opinion). Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous persons. . . . [I]t is important to note that a convicted felon may challenge the validity of a prior conviction, or otherwise remove his disability, before obtaining a firearm. -U.S. at pp.---, 100 S.Ct. at pp. 921-922. WE AFFIRM. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party LARKIN AUTOMOTIVE PARTS CO. et al. v. BASSICK MFG. CO. Circuit Court of Appeals, Seventh Circuit. April 25, 1927. No. 3823. 1. Judgment <©=3564(2) — Decree finally determining issue and settling controversy is sufficiently final to determine other litigation of parties respecting same issues. If decree in fact finally determines issues presented by pleadings, and settles controversies over the subject-matter involved, it is sufficiently final to determine other litigation between same parties respecting same issues, regardless of fact that it may in legal nomenclature be termed an interlocutory decree. 2. Patents <©=>327(4) — Circuit Court of Appeals decree determining validity and infringement of patent held final decree for purpose of applying doctrine of res judicata. Decree of Circuit Court of Appeals helé, for the purposes of applying doctrine of res judicata, a final decree in so far as it determines validity and infringement of patent involved. 3. Patents <©=>328 — No. 1,307,733, for lubricating device, claims 3, 4, and 5, held valid and infringed. Gullborg patent, No. 1,397,733, for lubricating device, claims 3, 4, and 5, helé valid and infringed. 4. Patents <©=>328 — No. 1,475,980, for lubricat- - ing system, held valid and infringed. Zerk patent, No. 1,475,980, for lubricating system, helé valid and infringed. Appeal from the District Court of the United States for the Eastern Division ’ of the Northern District of Illinois. Patent infringement by the Bassick Manufacturing Company against the Larkin Automotive Parts 'Company and another. Decree for plaintiff, and defendants appeal. • Affirmed, and order of District Court staying enforcement of decree vacated. Alfred M. Allen, of Cincinnati, Ohio, and John E. Stryker, of St. Paid, Minn., for appellants. Lynn A. Williams, of Chicago, Ill., for appellee. Before EVANS, PAGE, and ANDERSON, Circuit Judges. EVAN A. EVANS, Circuit Judge. This appeal involves the validity and infringement of three patents, to wit, Gullborg patent 1,307,733,“Gullborg patent 1,307,734 and Zerk patent 1,475,980, all owned by appellee. Before considering the defenses to Gullborg’s second patent, we must determine the effect of a recent decision of the Circuit Court of Appeals of the Sixth Circuit (18 F.[2d] 29), wherein the claims here contested were sustained and found to be infringed. Upon motion of appellee and with consent of appellants, the decree appealed from in that ease, the opinion of Judge Denison, and the mandate of that appellate court have all been filed herein. Prom this record it appears that in one suit appellee sued appellant Larkin Automotive Parts Company in the District Court of Ohio and a decree for plaintiff was entered. No appeal was taken. A year later, when an accounting was in progress, the court entered an order modifying somewhat its interlocutory decree, and holding that certain of the defendant’s products did not infringe this patent. An appeal was then taken by the appellee herein, and the court held that the claims of the patent here involved were valid and infringed. While this suit was pending, the instant suit was brought in the Northern District of Illinois, and Judge Lindley found the patent valid and infringed. 19 F.(2d) 939. From this decree appellants prosecuted the present appeal. Much space may be saved by a reference to these two decisions for a statement of the facts, the prior, art, the claims involved and a discussion of the issues presented. These facts invoke the doctrine of 'res adjudieata or estoppel by judgment (Hart Steel Co. v. Railroad Supply Co. 244 U. S. 294, 37 S. Ct. 506, 61 L. Ed. 1148), unless we conclude that the decree of the Circuit Court of Appeals of the Sixth Circuit is not final. Final, as used by the courts when dealing with the subject of res adjudieata, is not to be determined by adjective terms. If the decree in fact finally determines the issues presented by the pleadings and settles the controversies over the subject-matter involved, it is sufficiently final to determine other litigation between the same parties respecting the same issues, regardless of the fact that it may be in legal nomenclature termed an interlocutory decree. The Larkin Automotive Parts Company cannot further contest the validity of the claims involved in this patent in the Ohio litigation. We conclude, therefore, that for the purposes of applying the doctrine of res adjudicata the decree of the Circuit Court of Appeals is a final decree, so far as it determines the validity and infringement of claims 1, 2, and 6 of Gullborg patent 1,307,734. We recognize that the doctrine of res ad-judieata in its strict sense may not be readily applied in patent suits, because the infringement in the second suit would not ordinarily be identical with the infringement in the first suit. It would doubtless be more accurate to use the term “estoppel by judgment” than the term “res adjudicata,” when applying the doctrine to pátent suits. The result, however, is the same. But we are not required to rest our decision solely on the doctrine, of estoppel by judgment. As to appellant Montgomery Ward & Co., no estoppel exists, for it was not a party to the Ohio litigation. We believe, however, that the rule of comity leaves us no' alternative but to affirm the decision of the District Court. Appellee has sustained the claims of this patent here involved in over 60 federal District Courts. In at least 35 suits, the infring-ers contested the validity of the patent. In every instance the patent was sustained. We see no reason why the rule of comity should not be applied to patent suits, where the reason for the rule exists. It is true that evidence bearing upon the prior art, as well as the issue of infringement, may often differ on the second trial. Of course, if the difference is material, the rule of comity has no application. In fact, it should not be overworked in any ease. There is doubtless more danger of its too frequent appliance than otherwise. Certainly, where only one other court" has passed on the validity of the patent, this court would not be relieved of its duty to exercise its judgment, uncontrolled by the decision of the other court. But where the question of validity, as here, turns upon the effect of the inventor’s advance over the prior art, the opinions of other judges should not be ignored. In fact, when numerous courts have thus spoken, and all have reached the same conclusion, the question is practically settled. As was stated in Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 489, 20 S. Ct. 710, 44 L. Ed. 856: “The obligation to follow the decisions of other courts in patent eases, of course, increases in proportion to the number of courts which have passed upon the question, and the concordance of opinion may have been so general as to become a controlling authority.” Gullborg Patent 1,307,733. — This patent likewise was involved in both of the decisions cited above. No contention is made, however, that the Ohio decision is binding here for the parties are not the same. This patent, however, has been before many District Courts and has been uniformly sustained. Its validity has been assailed in some 20 different suits. In each instance, the attack failed. It has been so construed as to permit of a liberal equivalency of its novel element. In fact, in the Sixth Circuit Court of Appeals decision, one of the infringing devices was similar to the device manufactured by appellant. Appellant frankly concedes that on the issue of validity the only question is one involving invention. In other words, did the introduction of the novel element in the combination evidence mechanical skill or inventive genius? In view of the discussion of these patents in the opinions referred to, nothing will be accomplished by an elaboration of our views. We conclude that claims 3, 4, and 5 of this patent are valid and infringed. Zerk Patent 1,475,980. — Three claims (2, 3, and 5) are involved. Claim 2 is herewith set forth: “2. In a lubricating apparatus the combination with a lubricant receptacle element of a lubricant reservoir element of a lubricant reservoir for supplying lubricant thereto, means to put the lubricant in the reservoir under pressure, a lubricant feeding nozzle element, said reservoir communicating lubricant under pressure thereto, said receptacle element and said nozzle element having co-operative substantially noncompressible contact faces and opening therethrough, the nozzle contact face having a concavely spherical surface, the other contact face having a dirt-cutting circumferential edge portion adapted to be embraced within the spherical surface of the nozzle face and providing the sole contact therewith when the nozzle is pressed against the receptacle element from any one of a plurality of angularly different directions, to make a sealed, substantially nonyielding lubricant conducting connection between the face openings.” Figure 3 of the drawing is also reproduced, as illustrating'the novel elements of the claim: The asserted novelty of this patent lies in the “eoncavely spherical surface of the nozzle” and a “dirt-cutting circumferential edged part adapted to be embraced within the spherical surface of the nozzle face.” The results indicate that the introduction of these novel elements in the combination added materially to the solution of the problem that confronted the designer of apparatus for greasing automobile cars. Upon the oral argument we were given a demonstration of its successful workings. The grease was placed under high pressure and with no leakage at the point of contact between the nozzle and the dirt-cutting edge of the nipple. Witnesses testified to the necessity of high grease pressure — that with the Zerk apparatus, pressure of 8,000 pounds per square inch was obtainable. Under such pressure, the grease was transferred to the bearing without leakage at the joints. The .advantages of such results are obvious and need not be elaborated. It must be admitted, however, that advantageous as are the results, and novel though the-elements be, invention does not appear unless such an advance over the prior art was made as represented the genius of the inventor rather than the skill of the mechanic. Appellants insist that this advance represents merely mechanical skill, and was partially, if not fully anticipated, by the so-called White Company’s lubricating system. Perhaps the best answer to this asserted anticipation is the action of the White Company. The White Motor Company abandoned its apparatus when appellee’s lubricating system appeared on the market. It was one of the first manufacturers to adopt the Zerk equipment. Without going into detailed statement of the differences between White’s apparatus or Wallace’s patent, No. 1,494,652 and Zerk’s apparatus, we will content ourselves by saying that neither was an anticipation of the concept or the structure of Zerk. What Zerk undertook to do was, as he says, to design a cheaper gun that could be handled in one hand, and do away with the dust caps and provide means for excluding dust and to get a perfect metal to metal contact between the feeding nozzle element and the lubricant receptacle element upon the automobile, by making a dirt-cutting circumferential edge portion upon one element to fit into an angle the conically spherical element of the other element. While there are certain important features described in the specifications, apparently not covered by the claims in suit, we are of opinion that the Zerk construction, made in accordance with the claims, is a distinct advance in the respects described by him over the known practices of the art and that claims involved 2, 3, and 5, are valid. It is hardly necessary to discuss the question of the infringement of these claims for they were all clearly infringed. When this appeal was allowed, the court stayed the in-junctional part of its decree, upon the understanding that this ease would be presented to this court at the October, 1926, session. In view of the delays that have occurred, in hearing and disposing of this appeal, we think it necessary for the due protection of the prevailing party that this order be vacated. The decree is affirmed. The order of the District Court, staying the enforcement of the decree, is hereby vacated. 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_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. H. H. BECKANSTIN, Appellant, v. UNITED STATES of America, Appellee. No. 15773. United States Court of Appeals Fifth Circuit. April 25, 1956. Rehearing Denied May 24, 1956. James I. McCain, New Orleans, La., for appellant. Jack C. Benjamin, Asst. U. S. Atty., New Orleans, La., George R. Blue, U. S. Atty., New Orleans, La., for appellee. Before HUTCHESON, Chief Judge, and-TUTTLE and CAMERON, Circuit Judges. CAMERON, Circuit Judge. The appellant, H. H. Beckanstin, was convicted on one count of an indictment charging perjury in a civil suit in the United States District Court for the Eastern District of Louisiana. The indictment was in three counts, but two of thém were dismissed. The indictment was brought under 18 U.S.C.A. Sec. 1621, and the prosecution was based upon appellant’s alleged false statement as to where he graduated from architectural school. His attorney asked appellant: “What architectural school did you graduate from?”; and appellant responded “Massachusetts Institute of Technology.” He admitted later in the trial that, while he had attended that school, he had not graduated therefrom. The case is before us on appellant’s contentions that the testimony wás not about a material matter and that the evidence shows, as a matter of law, that appellant had no intent to deceive. The alleged perjured testimony was given in a civil damage suit brought in the Court below by appellant against one Emanuel Grizzaffi and tried in 1951. That was a. suit seeking damages appellant alleged, he had sustained by reason of an unsuccessful criminal prosecution Grizzaffi had instituted against him in a Louisiana State Court. That criminal prosecution had been instituted as the result of a controversy between appellant and Grizzaffi in connection with a house appellant, as contractor, had built for Grizzaffi in 1945. It is important to understand the setting in which the alleged perjured testimony was given in order to determine the real quality and import of the act of appellant in testifying to what,' according to his unequivocal statement, was not true. He had just been placed on the stand by his attorney, Mr. Blanchard, at the beginning of his civil damage suit against Grizzaffi. He was first asked to give his name, his residence, and his profession and the attorney then asked, “What architectural school did you graduate from?” Immediately after appellant had made his answer, “Massaehusetts Institute of Technology”, the Court interrupted the examination with a series of questions concerning a statement appellant had made to the effect that he was registered as an architect in every state of the Union. This had the effect of taking the attention of all engaged in the trial from the quoted question and answer with respect to which appellant is now being prosecuted. No one connected with appellant’s case then on trial seemed to have caught the misstatement except his wife, then his fiancée. That night, while she, appellant and the lawyer were at dinner, she asked if appellant had not testified that he graduated from M. I. T. Appellant immediately responded, “Oh, no”' — that he had merely attended the school. She countered with the statement that she understood that he answered that he had graduated from the school; and the three had a discussion as to whether the mistake, if made, should not be cleared up. The lawyer stated that he did not consider it important, and the matter was then dropped and the mistake was not voluntarily corrected. Grizzaffii’s attorney accordingly seized the opportunity to score a telling point and confronted appellant with a telegram from M. I. T. stating that he had attended the school, but had not graduated; and appellant promptly conceded that this was true. The foregoing sequence of events was established in the Court below in this trial by the testimony of Mr. Blanchard, the appellant and his wife. The Court below took hold of Mr. Blanchard, examining him vigorously in an effort to bring out from him that he had used the word “graduate” advisedly and because his client, the appellant, had so informed him. Mr. Blanchard denied that categorically and stated that appellant had not told him that he had graduated from any school of architecture, and that he had chosen his words inadvertently and without any thought of obtaining any advantage. At the time he asked the question he did not even know which school appellant had attended. Appellant testified that he did not know he had stated that he was a graduate of M. I. T., not catching the form of the question; that he was manifestly confused in his answer, that he never intended to convey that impression or to deceive anyone. His attorney verified these statements, also disclaiming any ulterior motive. In the face of this undisputed testimony we are of the opinion that the Government failed to establish the materiality of the testimony or the presence of the essential ingredient of intent to deceive. The testimony upon which the prosecution is predicated was given during the introductory stage of the examination of the witness. The whole series of questions was such as is normally expected when a litigant or witness is being identified to court and jury. But for the prompt interposition of the Court in connection with an answer to a previous question, it is likely that the mistake would have been caught at the time. At all events, it is clear that the answer was a mistake and that it would have been cleared up promptly when the young lady brought it to the attention of the appellant and his attorney except for the advice of the attorney that the question and answer were unimportant and that appellant ought not to be concerned about it. The materiality of an alleged false statement under the statute defining perjury is for the court, and the Court below charged the jury, as a matter of law, that the statement was material. With this we do not agree. The question and answer were preliminary and for the purpose of identification. They could not, under the circumstances, have had any material bearing on the issue in a suit for damages for false arrest and malicious prosecution. Whether or not Beckanstin had graduated from the school was of no consequence in resolving the issues involved in that suit. Under the facts here set forth the trial Court should have ruled that the false testimony was not, in fact, material. Moreover, in order to constitute perjury, a false statement must be made with criminal intent, that is, with intent to deceive, and must be wilfully, deliberately, knowingly and corruptly false. The positive evidence here all shows that, although the answer was false, the witness had not grasped the form of the question, and had not knowingly or wilfully made a false answer with intent to deceive. The circumstances corroborate the positive testimony. The advice of counsel is also important in determining whether appellant made the statement with a corrupt motive. As soon as he was acquainted with the fact that he had probably made a misleading statement he was ready to correct it, but the attorney did not consider that course necessary or advisable. Willingness to correct the misstatement, though not ordinarily a defense to a perjury prosecution, is potent to negative a wilful intent to swear falsely. The Court of Appeals of the Third Circuit, in a case involving facts not unlike those before us, expressed the general rule thus : “To sustain a conviction for perjury the burden is upon the government to establish by substantial evidence, excluding every other hypothesis than that of guilt, the essential elements of the crime charged. * * * An essential element is that the defendant must have acted with a criminal intent — he must have believed that what he swore to was false and he must have had the intent to deceive. If there was a lack of consciousness of the nature of the statement made or it was inadvertently made or there was a mistake of the import, there was no corrupt motive. * * * Assuming that the defendant made a false statement when he stated that he ‘got cash for this check’, it is settled that a false statement which is the result of an honest mistake is not perjury. People are prone to use colloquial terms in describing events and in doing so err in failing to adhere to technical terms but such error is insufficient to establish perjury. At most the defendant’s statement was equivocal. In this essential regard the evidence falls far short of the well-settled requirement that the elements of the crime of perjury must be proved by clear and convincing testimony to a moral certainty and beyond all reasonable doubt. Evidence which is merely probable is not enough.” While ordinarily knowledge and intent are matters to be passed upon by the jury, a prosecution must fail if the Government does not produce sufficient testimony to warrant, under the strict rules of proof applying in such cases, the jury in finding the presence of these necessary ingredients of the crime of perjury. We hold, therefore, that the Court below should have directed the jury to acquit appellant, and its judgment is reversed and the cause remanded for the entry of such a judgment. Reversed. . “Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any Written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of ' perjury, * * . Harrell v. United States, 5 Cir., 1955, 220 F.2d 516, and Blackmon v. United States, 5 Cir., 1940, 108 F.2d 572. . Cf. 70 U.S.J. See. 17(5) and succeeding sections. . Ib. and United States v. Norris, 1937, 300 U.S. 564, 576, 57 S.Ct. 535, 81 L.Ed. 808. . United States v. Rose, 3 Cir., 1954, 215 F.2d 617, 622, 623. . The same Court reached a like result and used similar language in United States v. Neff, 3 Cir., 1954, 212 F.2d 297, 306-307. This case, as well as the Rose case supra, cited as authority our case of McWhorter v. United States, 5 Cir., 1952, 193 F.2d 982. Both of these cases cite a wealth of authority tending to sustain the principles quoted from the Rose case. Fotie v. United States, 8 Cir., 1943, 137 F.2d 831, 841-842, involved an answer based upon a question which the witness had apparently not fully understood. Because of this and the fact that the trial Court dealt with the question and answer out of context caused the Court to reverse a conviction entered by a District Judge sitting without jury. Smith v. United States, 6 Cir., 1948, 169 F.2d 118, citing Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, Fraser v. United States, 6 Cir., 1944, 145 F.2d 145, certiorari denied 324 U.S. 842, 65 S.Ct. 586, 89 L.Ed. 1403, and other cases, is authority for the rule that, in perjury prosecutions, a preliminary question is presented to the Court whether the evidence upon which the prosecution is based is of sufficient quantity and quality to warrant submission to the jury, having in mind that, “To sustain a conviction, it must be shown by clear, convincing and direct evidence to a moral certainty and beyond a reasonable doubt that the defendant committed willful and corrupt perjury.” [169 F.2d 121.] And see also Spaeth v. United States, 6 Cir., 1955, 218 F.2d 361. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_usc1sect	48	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". In re WESTERN STATES BUILDING-LOAN ASS’N. Nos. 6510, 6511. Circuit Court of Appeals, Ninth Circuit July 13, 1931. Bieksler, Smith, Parke & Catlin, of Los Angeles, Cal., for petitioner Memory, Moldenhauer & Co. Dryer, Castle & Richards, of Los An-geles, Cal., for petitioner Western States Building-Loan Ass’n. Gold, Quittner & Kearsley, of Los Angeles, Cal., for respondents. Before WILBUR and SAWTELLE, Circuit Judges. PER CURIAM. The alleged bankrupt petitions for the allowance of an appeal of an order denying its motion to dismiss the involuntary petition in bankruptcy. The statute gives the right of appeal from an order of adjudication of bankruptcy (Bankr. Act, § 25, as amended by Act May 27, 1926, c. 406, § 10, 44 Stat. 665 [11 USCA § 48]). Such adjudication has not yet been made in the case at bar, and an appeal therefrom when made will afford petitioner an opportunity to present the question involved in its present application. Petition denied. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number. Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. DART CONTAINERLINE COMPANY LIMITED, Petitioner, v. FEDERAL MARITIME COMMISSION and United States of America, Respondents, Sea-Land Service, Inc., Intervenor. No. 82-1403. United States Court of Appeals, District of Columbia Circuit. Following Remand of the Record Nov. 29, 1983. As Amended Dec. 2, 1983. Edwin Longcope, Washington, D.C., with whom Frederick L. Shreves, II, Washington, D.C., was on the brief, for petitioner. David R. Miles, Atty., Federal Maritime Com’n, Washington, D.C., with whom C. Jonathan Benner, Gen. Counsel, Robert D. Bourgoin, Deputy Gen. Counsel, and C. Douglass Miller, Atty., Federal Maritime Com’n, Washington, D.C., were on the brief, for respondents. John J. Powers, III and Robert J. Wiggers, Attys., Dept, of Justice, Washington, D.C., also entered appearances for respondents. Paul J. McElligott, Washington, D.C., for intervenor. Before ROBINSON and EDWARDS, Circuit Judges, and MacKINNON, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge MacKINNON. MacKINNON, Senior Circuit Judge: Petitioner Dart Containerline Company, Ltd. (“Dart’) appeals from an order of the Federal Maritime Commission (FMC), which conditioned on certain capacity limitations its approval of Dart’s proposed agreement substituting a partner in a joint venture operating as a common carrier by water. After hearing oral argument in this case, this Court remanded to the Commission for a full report on whether the agency had properly asserted jurisdiction over Dart’s agreement and amendments thereto. Having received and considered the Commission’s “Report on Remand” and Dart’s objections to that report, the Court is now satisfied that the FMC had jurisdiction in this matter. Because, in effect, petitioner seeks to reverse an FMC order granting petitioner precisely the authority it sought, and because petitioner has acceded to the condition, we affirm the order of the FMC. I. Background In 1969, FMC approved Agreement No. 9745 (“the Agreement”), whereunder Dart was created to operate a joint venture in the trades between (1) ports in Eastern Canada and United States North Atlantic ports, on the one hand, and ports in Europe, on the other; and (2) ports in Eastern Canada and United States North Atlantic ports. The scope of the Agreement was subsequently modified (No. 9745-1) by substituting United States South Atlantic ports for Eastern Canadian ports in the transAtlantic service. Another amendment (No. 9745-2) substituted Consolidated Container Servicé Company, Ltd. (“Consolidated”) for Clarke by means of a stock transfer. The parties sought and obtained approval from FMC under section 15 of the Shipping Act of 1916, 46 U.S.C. § 814 (1976 & Supp. Y 1981), for both of these amendments to the original Agreement. A third amendment (No. 9745-3), and the order of FMC granting conditional approval thereto, give rise to this appeal. The amendment substitutes Centennial Shipping, Ltd. (“Centennial”), a subsidiary of Canadian Pacific, Ltd., for Bristol, reflecting thereby Centennial’s purchase of all of Bristol’s shares in Dart. This substitution occurs at a time when Dart is restructuring its entire service between North America and Europe. Dart no longer intends to call at Canadian ports as an adjunct to its service from United States ports. In addition, Dart will add Charleston as an Atlantic port of call and will continue to offer weekly service in the trade using four new contain-erships, each with a capacity of 1069 twenty-foot equivalent units (“TEUs”). Dart has transferred its trading rights in Canada to its coventurer Beige, whose subsidiary Dart Containerline (Canada) N.V. (“Dart Canada”), together with Canadian Pacific Steamships Ltd. (another subsidiary of Canadian Pacific, Ltd.) and Manchester Liners, Ltd., will operate a reorganized service from Canada to Europe. There exists, therefore, a commonality of ownership among those carriers involved in Canada and Europe service, on the one hand, and those involved in Dart’s contested United States and Europe service, on the other. Dart informed FMC of the impending stock transfer while maintaining that FMC approval was not required because such transfer was within the authority already granted Dart under the Agreement. FMC disagreed and advised Dart to submit the •proposed transfer as an amendment for separate section 15 approval. Dart complied. Sea-Land Service, Inc. (“Sea-Land”), a competitor of Dart and intervenor herein, protested the amendment because of alleged potential adverse impact on competitive conditions in the North Atlantic/Europe trade. Sea-Land viewed the amendment as but one part of an overall restructuring of Dart service from Canada and the United States to Europe, and it urged the Commission to consider the amendment in that context. While Sea-Land initially requested a full hearing under section 15, it stated that it would agree to approval for one year while a hearing was conducted, with a 4276 TEU capacity limitation— equivalent to the combined capacity of the four new containerships Dart proposed to utilize in its restructured service between the United States and Europe. Dart, in turn, reiterated its contention that approval was not necessary and insisted that the amendment be approved without a hearing. Dart indicated a willingness to accept a three-year term and the deletion of its United States-Canada service, but it resisted imposition of capacity limitations. The Commission rejected Dart’s contention that the amendment merely substitutes one party for another; instead, FMC viewed the amendment as “establish[ing] an entirely new joint venture ... [which] is subject to the approval requirements of section 15 .....” FMC also concluded that the new arrangement would be per se violative of the antitrust laws absent section 15 approval, but the Commission ruled that transportation and public interest benefits accruing from the agreement outweighed any anti-competitive impact. Accordingly, the Commission rejected Sea-Land’s request for a hearing, but did limit Dart’s service to its planned capacity of 4276 TEUs. Subject to this condition — plus the two conditions Dart had previously agreed to accept, see supra — FMC approved Agreement No. 9745-3 on February 10, 1982. Two months later, Dart’s new coventurers filed a revised agreement accepting the Commission’s conditions. See Appendix A to Brief for Respondent. Sea-Land has not appealed from the order. Upon appeal, Dart offered three grounds for assailing the agency’s decision to impose capacity limitations: that FMC exceeded its authority by presuming to pass on a stock transfer Dart was entitled to effect without FMC approval; that the decision is not supported by substantial evidence; and that the decision was arbitrary and capricious. After hearing oral argument, this Court, acting sua sponte, issued an order remanding to the FMC on March 8, 1983. The Court ordered the Commission to provide “a statement for its reasons for asserting jurisdiction over the matter in controversy.” In response to this Court’s order, the Commission on May 15, 1983, issued its Order on Remand stating that “[proponents of Agreement 9745 and Protestant Sea-Land Service, Inc. máy present evidence and argument addressing the question of the Commission’s jurisdiction over Agreement 9745 .... ” Dart declined the FMC’s invitation to participate in the remand proceedings. The Commission filed its “Report on Remand” on September 2, 1983, vigorously defending the FMC’s exercise of jurisdiction in this matter. Subsequently, on September 21,1983, this Court allowed Dart to file a response to the FMC’s Report on Remand, notwithstanding Dart’s refusal to participate before the Commission. II. The Commission’s Jurisdiction Over the Dart Agreement The first issue in this case is necessarily that which this Court remanded to the Commission for a full report: whether the FMC had statutory jurisdiction over Agreement No. 9745, establishing Dart, and amendments thereto. The Commission’s “Report on Remand” has convinced us that the FMC had a sufficient factual basis for its assertion of jurisdiction. Preliminarily, it is important that it was Dart itself that invoked the Commission’s jurisdiction. While Dart may have initially contended that FMC approval of the stock transfer was not necessary, Dart did ultimately petition for, and receive the agency’s approval. Even more importantly, Dart initially invoked the Commission’s jurisdiction when it first sought approval of Agreement No. 9745 as a shield against the antitrust laws, and when it sought the first two amendments to the Agreement. In a case remarkably similar to that at bar, the Supreme Court held: [A]ppellant, having invoked the power of the [Interstate Commerce] Commission to approve the transfer of the amended certificate to it, is now estopped to deny the Commission’s power to issue the certificate in its present form and as it existed prior to the time the appellant sought its transfer. United Fuel Gas Co. v. Railroad Comm’n, 278 U.S. 300, 307-08 [49 S.Ct. 150, 151-152, 73 L.Ed. 390 (1929)]; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U.S. 469 [43 S.Ct. 178, 67 L.Ed. 351 (1923)] ... The appellant cannot blow hot and cold and take now a position contrary to that taken in the proceedings it invoked to obtain the Commission’s approval. Callanan Road Improvement Co. v. United States, 345 U.S. 507, 513, 73 S.Ct. 803, 806, 97 L.Ed. 1206 (1953); see Admiral Towing Co. v. Woolen, 290 F.2d 641, 644-45 (9th Cir.1961). Although a party’s petition cannot bestow statutory jurisdiction upon an agency, the party’s invocation of an agency’s jurisdiction may preclude later attacks on that jurisdiction, at least where a colora-ble basis for jurisdiction exists. In this case, Dart apparently did not deny the Commission’s jurisdiction over Agreement No. 9745 until oral argument in this case. Thus under the present circumstances, Dart’s attack on the FMC’s jurisdiction is launched from a very weak position. In any event, the Commission has demonstrated adequately that its jurisdiction was well founded. The statutory requirement is as follows: Every common carrier by water, or other person subject to this Act, shall file immediately with the Commission a true copy, or, if oral, a true and complete memorandum, of every agreement with another such carrier or other person subject to this chapter, or modification or cancellation thereof, to which it may be a party or conform in whole or in part, 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; pooling or apportioning earnings, losses, or traffic; 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. 46 U.S.C. § 814 (1976 & Supp. V 1981) (emphasis added). The term “common carrier by water” is broadly defined as “a common carrier by water in foreign commerce ... on regular routes from port to port.” 46 U.S.C. § 801 (1976 & Supp. V 1981). In 1969, Dart first filed Agreement No. 9745 over which the Commission exercised its statutory jurisdiction. The original Agreement, paragraph 1, stated: Each of the parties to this Agreement is, or will be either in its own name or through its wholly-owned subsidiary, at the time of the operative events hereinafter described, a common carrier by water in the commerce between Europe and/or Eastern Canada and the United States. Having thereby in 1969 conceded the “common carrier” status of the individual parties to the Agreement, Dart did not attempt to refute the Commission’s jurisdiction until this appeal. At no time has Dart provided any evidence, fresh or otherwise, to back up its present claim that the Commission lacks jurisdiction; rather it has preferred to rely upon conclusory statements. Most notably, Dart held itself aloof from participation in the Commission’s inquiry into jurisdiction upon remand. Dart’s basic contention is that “as a single entity (a Bermuda corporation formed by three steamship company shareholders) it was not subject to Commission jurisdiction under Section 15.” Dart’s Reply to “Report on Remand” at 2. Dart’s claim to single-carrier status for section 15 purposes is unconvincing. First, the contention flies in the face of the above-quoted provision of the original Agreement, which conceded the common carrier status of each participant. Second, elementary principles of antitrust law render Dart’s legal status as a Bermuda corporation immaterial to its status under statutes regulating competition. See United States v. Penn-Olin Chemical Co., 378 U.S. 158, 168, 84 S.Ct. 1710, 1715, 12 L.Ed.2d 775 (1964); United States v. Mammoth Oil Co., 14 F.2d 705, 729 (8th Cir.1926), aff’d, 275 U.S. 13, 48 S.Ct. 1, 72 L.Ed. 137 (1927). The Commission is duty-bound to look beyond the corporate facade to the functional substance of the Dart arrangement. In substance, as opposed to corporate form, Dart is comprised of three carriers acting in concert. By its very terms, paragraph 2(b) of the Agreement forecloses competition among its parties: “[N]one of the parties hereto will act as principal or agent for any competing service in the trade covered herein.” Furthermore, the Commission demonstrated upon remand that evidence on the record supported the FMC’s conclusion that two affiliates of the parties to the Agreement, Beige and Consolidated, are presently operating as statutory common carriers by water. The share purchase and shareholder agreements between the Dart parties, as well as paragraph 2(b) of Agreement No. 9745 itself, impose obligations and restrictions upon such affiliates. Thus on the record before the Commission, it was fully justified in concluding that an adequate basis for statutory jurisdiction existed in that Dart involved several carriers. III. The Commission’s Authority to Impose Capaoity Limitations Dart advances two grounds for its contention that FMC lacked authority to impose capacity limitations: that section 15 does not empower the Commission to impose conditions on an agreement over the objection of the proponents, and that Dart already had been granted authority to effect the stock transfer by approval of the original Agreement. Neither contention has merit. Section 15 grants FMC express authority to modify agreements which are submitted to it for approval (putting aside, for the moment, the question whether approval of this particular amendment was required): The Commission shall by order, after notice and hearing, ... modify any agreement, or any modification or cancellation thereof, whether or not previously approved by it, that it finds ... to operate to the detriment of the commerce of the United States, or to be contrary to the public interest .... 46 U.S.C. § 814 (1976 & Supp. V 1981) (emphasis added). Accordingly, this Court has held that FMC may modify an agreement to alleviate its anticompetitive effects. See Sea-Land Service, Inc. v. United States, 683 F.2d 491, 502-03 (D.C.Cir.1982); United States Lines, Inc. v. FMC, 584 F.2d 519, 528 (D.C.Cir.1978) (citing FMC v. Pacific Maritime Ass'n, 435 U.S. 40, 53-54, 98 S.Ct. 927, 935-36, 55 L.Ed.2d 96 (1978)). Against such express authority Dart interposes a series of weak arguments. First, Dart insists that in the past FMC has imposed capacity limitations only in space charter and pooling agreements, i.e., arrangements between shippers who are in direct competition at the time the agreements are filed. But the Commission found — from Dart’s own evidence — that Centennial was a potential competitor which had considered other less anticompet-itive modes of entering the trade. Further, it is difficult to see how FMC’s statutory authority to impose conditions can be made to turn on whether Centennial is a present or potential competitor, especially in view of this court’s decision to remand, for failure to consider antitrust consequences, an agreement which would have added a potential competitor as a party to an existing joint venture. See United States Lines, Inc., supra, 584 F.2d at 530, 543. Second, Dart maintains that FMC “has clearly recognized its inability to impose capacity limitations on single carriers.” Brief for Petitioner at 12 (footnote omitted) (citing Agreements Nos. 9902-3, et a1. (Modification of Euro-Pacific Joint Service), 19 S.R.R. (P & F) 141, 146 (1979)). Dart’s claim to single-carrier status for section 15 purposes, however, is no more convincing in this respect than in the jurisdictional context. Third, Dart nonetheless maintains that FMC cannot impose limitations on a section 15 agreement over Dart’s objection. Technically, this is correct. As the Commission has explained, [t]he power to modify is not the power to compel acceptance of the modification. When a new agreement filed for approval comports with the requirements of section 15, save in one or even a number of its provisions, we are empowered to modify the objectionable provisions and condition our approval of the agreement upon the acceptance of those modifications. Thus, while the parties to the agreement, should they desire to act in concert, must accept the conditions imposed upon their concerted action by the modifications, they are always free to reject the modifications and continue their operations as before. Inter-American Freight Conference—Cargo Pooling Agreements Nos. 9682, 9683 and 9684, 14 F.M.C. 58, 62 (1970) (emphasis added). Accordingly, the FMC has promulgated a regulation providing that if parties to a conditionally approved agreement do not accept the conditions, the conditional approval becomes null and void and the agreement, as filed, is reconsidered by the Commission. See 46 C.F.R. § 522.7 (1982). In fact, Dart did acquiesce to the conditions by modifying its agreement to conform to the order. See Appendix A to Brief for Respondent. Dart could have continued under its prior organization and sought reconsideration. In that light, Dart’s acquiescence has a devastating effect on the position it advances in its present petition. Finally, Dart continues to maintain that FMC’s approval of the original Agreement granted Dart the authority to transfer its stock without FMC approval. See Brief for Petitioner at 15-16. Having been granted the authority to organize as a corporation under the original Agreement, Dart insists its proposed sale of stock is now governed by “general principles of corporation law” and that FMC’s finding that substituting Centennial would constitute a new entity is “contrary to basic corporate law.” Id. Again, corporate law is not dispositive where FMC is charged under section 15 with the duty to consider the anticompeti-tive impact of a proposed exemption from the antitrust laws. Given the commonality of ownership among potential competitors that would result from Dart’s restructuring of its North America/Europe service, this is not the “simple amendment” that petitioner would have us shrug off. Moreover, the statute expressly makes subject to the approval requirements of section 15 “every agreement ..., or modification or cancellation thereof, ... in any manner providing for an exclusive, preferential, or cooperative working agreement.” 46 U.S.C. § 814 (1976 & Supp. V 1981) (emphasis added). With or without a sale or stock, Centennial proposes to enter into a “cooperative working arrangement” with two of Dart’s present coventurers. The Shipping Act does not exempt from review arrangements brought about by the operation of Bermuda corporate law. Furthermore, even if the amendment were deemed not subject to section 15, FMC nonetheless may elect to review the original Agreement because changes wrought by Centennial’s substitution could have anticompetitive consequences. See Agreements Nos. 8200, et al., 19 S.R.R. (P & F) 245 (1979) (prior approval does not create a vested right of approval). IV. Substantial Evidence and Reasonableness As FMC notes in its brief, there was ample evidence provided by petitioner’s own submissions and witnesses to support imposition of capacity limitations. See Brief for Respondent at 22-24. The Commission based its decision to substitute a capacity limitation for the original Agreement’s seven-vessel limitation on two factors. First, FMC noted that the original vessel limitation was attached to an agreement which included a Canada and Europe service (now deleted), and a vessel limitation had “no relevance to the present commercial realities in the trade now covered by the [new] Agreement — U.S. to the U.K. and Europe.” Second, the Commission found that the proposed capacity of Dart’s four vessels, the basis of the FMC’s capacity limitation, “does not appear unreasonable” because the vessels would no longer call at any Canadian ports while adding only one new American port of call. Moreover, FMC viewed overtonnage and trade instability as considerations affecting its approval, based in part on the evidence that Dart itself offered to support the existence and relevance of these concerns. FMC not unreasonably concluded that it should grant only such authority as Dart itself maintained would not alter its container capacity. The Commission thereby avoided exacerbating the overtonnage and trade instability problems. In addition, Dart’s own submissions from Centennial provide substantial evidence that a potential competitor would be folded into the arrangement. V. The Commission had jurisdiction over Dart’s Agreement and the authority to impose the conditions that it did; the agency’s resolution was not arbitrary and capricious; nor was substantial evidence wanting. Dart received approval for precisely the tonnage it proposed to utilize. That it now complains about limitations suggests that Sea-Land’s suspicions perhaps were not so unfounded. In any case, if Dart decides it must expand its trade, it may seek modification of its Agreement. See Farrell Lines, Inc. v. FMC, 475 F.2d 1332 (D.C.Cir.1973). The Commission itself remarked that capacity limitations would prevail “until such time as operational circumstances are shown to necessitate a different level of service.” All the Commission has done, in effect, is to require further approval should Dart decide to expand its capacity. For the reasons stated, we affirm the order of the Commission approving Dart’s proposed amendment of its Agreement and imposing tonnage limitations as a condition to that approval. Judgment Accordingly. . The original parties to the venture were Com-pagnie Maritime Beige, S.A. (“Beige”), Bristol City Line of Steamships, Ltd. (“Bristol”), and Clarke Traffic Services Ltd. (“Clarke”). . As noted, Beige is both a coventurer in Dart and a parent of Dart Canada, whose other parent Canadian Pacific, Ltd. is also the parent of Centennial, the proposed substitute for Bristol. Moreover, Manchester Liners and Consolidated (a Dart coventurer) share common ownership. . The following exchange took place at oral argument: The Court: To go back to the ’69 original arrangement .... Did the Commission have authority then? Mr. Longscope: I said no, it did not. The Court: All right, why not? Mr. Longscope: Because the parties involved were mere shareholders in the setting up of a corporation. They were not common carriers, persons subject to the Act. I debated that with the Commission staff and in order that we could get going and do business, we accepted their position and filed the agreement. 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_timely	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Adam Frederick CHAPMAN, Plaintiff-Appellant, v. POWERMATIC, INC., Defendant-Appellee. No. 91-7164. United States Court of Appeals, Fifth Circuit. Aug. 26, 1992. Rehearing and Rehearing En Banc Denied Sept. 21, 1992. Charles W. McGarry, Kim R. Thorne, Grand Prairie, Tex., for plaintiff-appellant. Mark A. Shank, William L. Davis, Clark West Keller Butler & Ellis, Dallas, Tex., for defendant-appellee. Before GOLDBERG, JONES, and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge: Adam Frederick Chapman (Chapman), a student at Duncanville High School in Dun-canville, Texas, was injured when his right hand came into contact with a wood planer in the wood-working shop of the high school. Shortly thereafter, on March 27, 1990, Chapman’s attorney sent a letter to Powermatic, Inc., (Powermatic), the manufacturer of the wood planer, advising Pow-ermatic that it was a potential defendant and that Chapman had incurred medical expenses in the amount of $67,196.48. Additionally, in April 1990, Chapman provided the investigative service hired by Power-matic with copies of Chapman’s medical bills. On June 28, 1990, Chapman sued Power-matic in state court alleging numerous causes of action. The petition was served on Powermatic on July 10, and Powermatic filed its answer on July 26. The petition revealed that there was complete diversity of citizenship between the two parties, but it did not plead for a specific amount of damages. On August 17, 1990, Chapman answered the first set of interrogatories that Powermatic had served on him in which Chapman stated that he had suffered damages in excess of $800,000. On August 27, Powermatic filed a notice of removal in the United States District Court for the Northern District of Texas (the “USDC). In response, Chapman moved to have the case remanded to state court contending that Powermatic did not timely remove the case. The USDC denied Chapman’s motion to remand holding that the “[djefendant removed this case within 30 days from the time it received answers to interrogatories stating that the amount in controversy was over $50,000. This case was timely removed pursuant to 28 U.S.C. § 1446(b).” The case proceeded to trial before a jury; and at the conclusion of the trial, the jury found that Powermatic did not cause Chapman’s injuries. The USDC entered a take nothing judgment on the jury’s verdict. Chapman appeals the USDC’s denial of his motion to remand. DISCUSSION Both parties agree that the requirements for diversity jurisdiction exist in this case: the “matter in controversy exceeds the sum or value of $50,000,” and the parties are “citizens of different states.” 28 U.S.C. § 1332(a). What the parties do not agree on, however, and what Chapman’s appeal concerns, is whether Powermatic timely removed the case to federal court pursuant to 28 U.S.C. § 1446(b). Section 1446(b) provides in pertinent part that: [the] notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based_ If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable.... In essence, when read as a whole, § 1446(b) provides a two-step test for determining whether a defendant timely removed a case. The first paragraph provides that if the case stated by the initial pleading is removable, then notice of removal must be filed within thirty days from the receipt of the initial pleading by the defendant; and the second paragraph provides, if the case stated by the initial pleading is not removable, then notice of removal must be filed within thirty days from the receipt of an amended pleading, motion, order, or other paper from which the defendant can ascertain that the case is removable. A. Initial Pleading Relying on the first paragraph of § 1446(b), Chapman contends that the district court erred in not remanding the case to state court because Powermatic did not remove the case within thirty days from its receipt of the initial pleading. To support his contention that the district court erred Chapman argues that all pleadings fall into one of three categories: (1) removable, (2) nonremovable, and (3) indeterminate as to removability. The initial pleading in this case was indeterminate as to removability, Chapman contends, because it revealed that there was complete diversity of citizenship between the parties, but it pled for an indeterminate amount of damages. When a pleading is indeterminate as to removability, Chapman contends, a defendant is under a duty to exercise due diligence in determining whether the case is in fact removable. Applying that duty of due diligence to the facts of the present case, Chapman contends that Powermatic was required under the first paragraph of § 1446(b) to remove the case within 30 days from its receipt of the initial, pleading, because the initial pleading revealed that there was complete diversity of citizenship between the parties, and Powermatic knew or in the exercise of due diligence should have known that the amount in controversy exceeded $50,000. We have found no circuit court opinions that address whether a defendant is under a duty to exercise due diligence in determining the amount in controversy when the initial pleading does not reveal such an amount, and the district court opinions addressing this question are in disagreement. In large part, Chapman bases his contention that Powermatic did not timely remove the case on the district court opinion of Mielke v. Allstate Insurance Company, 472 F.Supp. 851 (E.D.Mich.1979). In Mielke, the initial pleading of the plaintiff did not contain a specific demand for damages, however, before the defendant had received the initial pleading, the plaintiff had sent the defendant copies of medical bills and expenses that revealed that he was seeking damages in excess of the minimum jurisdictional amount of the federal court. Additionally, the defendant admitted that it had actual knowledge that the plaintiff was seeking damages in excess of the jurisdictional minimum. Forty-five days after receiving the initial pleading, but only thirty days after receiving an amended pleading revealing that the amount in controversy was in excess of five million dollars, the defendant removed the case. After removal, the district court remanded the case to state court holding that removal of the case was untimely because the defendant should have ascertained from the circumstance and the initial pleading that the defendant was seeking damages in excess of the minimum jurisdictional amount. The court stated that “there is no reason to allow a defendant additional time if the presence of grounds for removal are unambiguous in light of the defendant’s knowledge and the claims made in the initial complaint.” Id. at 853. We disagree with the opinion of the district court in Mielke, and conclude that for the purposes of the first paragraph of § 1446(b), the thirty day time period in which a defendant must remove a case starts to run from defendant’s receipt of the initial pleading only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court. We adopt this rule because we conclude that it promotes certainty and judicial efficiency by not requiring courts to inquire into what a particular defendant may or may not subjectively know. The rule announced in Mielke, which Chapman proposes that we adopt, in contrast, would needlessly inject uncertainty into a court’s inquiry as to whether a defendant has timely removed a case, and as a result would require courts to expend needlessly their resources trying to determine what the defendant knew at the time it received the initial pleading and what the defendant would have known had it exercised due diligence. Moreover, the rule in Mielke would encourage defendants to remove prematurely cases in which the initial pleading does not affirmatively reveal that the amount in controversy is in excess of $50,000 so as to be sure that they do not accidentally waive their right to have the case tried in a federal court. We believe the better policy is to focus the parties’ and the court’s attention on what the initial pleading sets forth, by adopting a bright line rule requiring the plaintiff, if he wishes the thirty-day time period to run from the defendant’s receipt of the initial pleading, to place in the initial pleading a specific allegation that damages are in excess of the federal jurisdictional amount. B. Other Paper Chapman’s second contention is that even if the initial pleading did not state a case that was removable pursuant to the first paragraph of § 1446(b), Power-matic’s removal was still untimely pursuant to the second paragraph of § 1446(b). The medical bills and demand letter delivered by Chapman to Powermatic before it was sued revealing that Chapman was seeking damages in excess of $50,000, Chapman contends, were “other paper” within the meaning of the second paragraph of § 1446(b). Therefore, Chapman contends, Powermatic’s receipt of that “other paper” (medical bills and demand letter) before it was sued, revealing that the amount in controversy exceeded $50,-000, coupled with Powermatic’s receipt of the initial pleading revealing complete diversity of citizenship between the parties, triggered the thirty-day time limit of the second paragraph of § 1446(b). In other words, Chapman contends that “other paper” for purposes of the second paragraph of § 1446(b) may come prior to the defendant’s receipt of the initial pleading. And if this occurs, Chapman contends, that the thirty-day time period begins to run from the time that the defendant received the initial pleading. Chapman bases his contention on the opinion of the district court in Central Iowa Agri-Systems v. Old Heritage Advertisers and Publishers, Inc., 727 F.Supp. 1304 (S.D. Iowa 1989). In Central Iowa, the plaintiffs initial pleading did not allege a specific amount of damages, but the plaintiff had sent the defendant a demand letter before he sued in which the plaintiff stated that he conservatively estimated his damages to be in excess of $40,000. That pre-suit demand letter, the court held, was an “other paper” for purposes of the second paragraph of § 1446(b) from which the defendant could ascertain that the case was removable. Therefore, the court held that the defendant’s removal of the case was untimely because the defendant did not remove within thirty days from its receipt of the initial pleading. We decline to follow the district court’s opinion in Central Iowa and consequently reject Chapman’s contention, because we conclude that both are in conflict with the plain language of the removal statute. The plain language of the second paragraph of § 1446(b) requires that if an “other paper” is to start the thirty-day time period, a defendant must receive the “other paper” after receiving the initial pleading. The second paragraph of § 1446(b) applies by its terms only “if the case stated by the initial pleading is not removable.... ” 28 U.S.C. § 1446(b). More important, the second paragraph of § 1446(b) requires that the defendant remove the case, if at all, within 30 days after receipt of an “other paper” from which the defendant may first ascertain that the case is removable. Logic dictates that a defendant can “first” ascertain whether a case is removable from an “other paper” only after receipt of both the initial pleading and that “other paper”; and therefore the thirty-day time period begins to run, not from the receipt of the initial pleading, but rather from the receipt of the “other paper” revealing that the case is removable. Chapman would have us adopt a rule which would be clearly inconsistent with the plain language of the second paragraph of § 1446(b), which states that “a notice of removal may be filed within thirty days after receipt by the defendant ... [of an] other paper from which it may first be ascertained that the case is one which is or has become removable.... ” By its plain terms the statute requires that if an “other paper” is to trigger the thirty-day time period of the second paragraph of § 1446(b), the defendant must receive the “other paper” only after it receives the initial pleading. Finally, we believe that our holding that the “other paper” must be received after the filing of the initial pleading is supported by the recitation in the second paragraph of § 1446(b) of the words “amended pleading, motion, order” before the words “or other paper,” which clearly refer to actions normally and logically occurring after the filing of the initial pleading. Clearly the answer to interrogatory which triggered the filing of the notice of removal in this case is such an “other paper.” We find the plain language of the statute to be clear in this regard and as such we are bound to follow it. “[I]n any case requiring statutory construction, the High Court has instructed us to adhere to the plain language of the law unless ‘literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” In re Meyerland Co., 960 F.2d 512, 516 (5th Cir.1992), (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). We conclude that adhering to the plain language of the second paragraph of § 1446(b) by requiring that an “other paper,” in order to trigger the thirty-day time period, be received by a defendant only after that defendant has received the initial pleading does not “produce a result demonstrably at odds with the intentions of its drafters,” but, instead, produces a result that is entirely consistent with the intentions of its drafters. Id. In summation, we hold that Powermatic timely removed this case because: (1) the initial pleading was not removable pursuant to the first paragraph of § 1446(b), since it did not reveal on its face that the amount in controversy was in excess of $50,000; and (2) the medical bills and demand letter received by Powermatic did not begin the running of the thirty-day time period of the second paragraph of § 1446(b), since Powermatic received the medical bills and demand letter before it received the initial pleading. For the foregoing reasons, the judgment of the district court is AFFIRMED. . Before Chapman sued Powermatic the investigative service interviewed Chapman, took photographs of his injuries, obtained a copy of a report from his surgeon describing his injuries, and obtained copies of witnesses’ statements. . Chapman sued Powermatic under the theories of negligence, strict liability, breach of warranty, and the Deceptive Trade Practices Act. . Chapman’s initial petition stated that he had "suffered damages in excess of the minimum jurisdictional limits of the court.” A question exists whether there is a minimum jurisdictional limit in Texas district court, which is where the suit was initially filed, although one commentator has opined that the jurisdictional minimum is five hundred dollars. See W. Dorsa-neo, 1 Tex.Lit.Guide § 2.01 [3][b][ii] (1989); See also City of Mesquite v. Moore, 800 S.W.2d 617, 621 n. 1 (Tex.App. — Dallas 1990, no writ). Texas Rule of Civil Procedure 47(b) states that “an original pleading ... shall contain (b) in all claims for unliquidated damages only the statement that the damages sought are within the jurisdictional limits of the court, ... ”; See also La.Code Civ.Proc.Ann.Art. 893(A)(1) ("No specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand. The prayer for relief shall be for such damages as are reasonable in the premises. If a specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial or for other purposes, a general allegation that the claim exceeds or is less than the requisite amount is sufficient.”) In our opinion, neither T.R.C.P. 47(b) nor La.Code Civ.Proc.Ann. art. 893(A)(1) prohibit a plaintiff from alleging in his initial pleading that the damages exceed the minimum jurisdictional amount of the federal court. . Powermatic tacitly concedes that it knew that the amount in controversy exceeded the $50,000 minimum jurisdictional limit of the federal court when it received the initial pleading. .See e.g. Mielke v. Allstate Insur. Comp., 472 F.Supp. 851 (E.D.Mich.1979); Turner v. Wilson Foods Corp., 711 F.Supp. 624, 626 (N.D.Ga.1989) (initial pleading was held to put the defendant on notice that the amount in controversy exceeded $10,000 when the initial pleading alleged severe burns, permanent scarring, pain and suffering, and lifelong medical expenses, but did not specify an amount of damages); Rickman v. Zimmer, Inc., 644 F.Supp. 540, 542 (S.D.Fla.1986) (initial pleading that alleged serious personal injuries was held to place the defendant on notice that the case was removable, even though the plaintiff merely alleged that his damages exceeded the state court’s minimum jurisdictional amount); Lee v. Altamil Corp., 457 F.Supp. 979, 981 (M.D.Fla.1978) (initial pleading merely alleging that the plaintiff’s damages exceeded the state jurisdictional minimum of $2,500 was held to adequately place the defendant on notice of the substantial damages involved); But see contra Rowe v. Marder, 750 F.Supp. 718, 721 (W.D.Pa.1990), aff'd 935 F.2d 1282 (3rd Cir.1991) (court held that “initial pleading” did not begin the running of the thirty day time period for removal when it did not allege a specific amount of damages, even though the defendant probably knew that the damages would exceed $50,000). . Should a defendant choose to remove a case within thirty days from its receipt of an initial pleading that does not reveal on its face that the plaintiff is seeking damages in excess of the jurisdictional minimum, the federal court may either: (1) look to the petition for removal, (2) make an independent appraisal of the amount of the claim, or suggest that the defendant is free to do so, or (3) remand the action. Rollwitz v. Burlington Northern R.R., 507 F.Supp. 582, 585 (D.Mont.1981); Coleman v. Southern Norfolk, 734 F.Supp. 719 (E.D.La.1990); See also Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3725 at 423, 426-27. . The minimum jurisdictional limit of the federal court applicable at this time was $10,000. . We express no opinion as to whether the medical bills and demand letter would otherwise be adequate as "other paper" for purposes of the second paragraph of § 1446(b). Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
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. LEE, COMMISSIONER OF CORRECTIONS OF ALABAMA, et al. v. WASHINGTON et al. No. 75. Argued November 7, 1967. Decided March 11, 1968. Nicholas S. Hare, Special Assistant Attorney General of Alabama, argued the cause for appellants. With him on the briefs were MacDonald Gallion, Attorney General, Gordon Madison, Assistant Attorney General, and J. M. Breckenridge. Charles Morgan, Jr., argued the cause for appellees. With him on the brief were Orzell Billingsley, Jr., and Melvin L. Wulf. Per Curiam. This appeal challenges a decree of a three-judge District Court declaring that certain Alabama statutes violate the Fourteenth Amendment to the extent that they require segregation of the races, in prisons and jails, and establishing a schedule for desegregation of these institutions. The State’s contentions that Rule 23 of the Federal Rules of Civil Procedure, which relates to class actions, was violated in this case and that the challenged statutes are not unconstitutional are without merit. The remaining contention of the State is that the specific orders directing desegregation of prisons and jails make no allowance for the necessities of prison security and discipline, but we do not so read the “Order, Judgment and Decree” of the District Court, which when read as a whole we find unexceptionable. The judgment is affirmed. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_origin	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. PUERTO RICO TOBACCO MARKETING COOPERATIVE ASS’N v. McCOMB. No. 4417. United States Court of Appeals First Circuit. April 28, 1950. E. Martinez Rivera, San Juan, Puerto Rico (Luis Blanco Lugo, San Juan, Puerto Rico, on brief), for appellant. Bessie Margolin, Assistant Solicitor, Washington, D. C. (William S. Tyson, Solicitor, and William A. Lowe and Harry A. Tuell, all of Washington, D. C. and Kenneth P. Montgomery, Regional Attorney, Santurce, Puerto Rico, bn brief), for appellee. Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges. WOODBURY, Circuit Judge. The Administrator of the Wage and Hour Division, United States Department of Labor, brought the instant action against the Puerto Rico Tobacco Marketing Cooperative Association to restrain it from violating § 15(a) (1), (2), and (5) of the. Fair Labor Standards Act of 1938, 52 Stat. 1068, 29 U.S.C.A. § 215(a) (1), (2)-,' (.5) with respect to certain of its warehouse and stemmery employees. The court below on stipulated facts and the testimony of one expert witness called by the Administrator, entered judgment for the plaintiff according to the complaint and .the defendant thereupon took this appeal. ■ The defendant is a ’ cooperative associa-' tion incorporated not for pecuniary ‘profit under Insular Act No. 70 of 1925. Laws of' Puerto Rico 1925, p. 368 et seq. It has a principal office in San Juan, and tobacco warehouses and stemmeries in eight other municipalities in the Island. Its warehouse and stemmery operations at Comerio have been stipulated, we take -it because they typify its operations of that kind elsewhere, and it is stipulated that all of its employees there “are engaged in processes or occupations necessary to the production of goods for interstate commerce and, therer' fore, are within the general coverage of' the Fair Labor Standards Act and are entitled to its benefits unless they are exempted by specific provisions of the Act.”' .The; specific exemption provisions involved are those having to do with agricultural employments embodied in §§ '13(a) "(6) and 13 (a) (10) of the Act. The Association handles only tobacco grown by its members, of whom there are about 7,000, and 'each member is under coni tract to market all his tobacco through the Association. The latter by the terms of its contracts with its members takes title to‘ the tobacco as soon as it has “potential existence”,’but the member is responsible for his crop until he delivers it to the Association. Upon delivery the Association grades and weighs the tobacco, and then processes it for marketing exclusively in continental United States. It is stipulated that the Comerio warehouse and stemmery, and on our assumption its other warehouses and stem-meries also, is a “first concentration point” for all tobacco received and worked upon there within the meaning of that term as used by the Administrator in his definition of “area of production” with respect to Puerto Rico leaf tobacco. Regulations Defining Area of Production, as amended December 1946, § 536.2(a) (2) and (c). . The members first dry their tobacco in barns or sheds on their, premises and then deliver it at the Association’s warehouses in loose bales or bundles weighing about one quintal, or one hundred pounds.. There it is first weighed and receipted for and then graded according to type and quality. Following this the tobacco is put into piles known locally as “estibas” of about 150 quintales and allowed to ferment under controlled conditions of temperature for about two months, during which time the piles are torn down and rebuilt by moving the inside leaves to the outside of the pile, and vice versa, some six or eight times as the fermentation process requires. When this fermentation process, known as bulking, is completed the tobacco is stacked for 'later stemming. When the stemming season starts the fermented tobacco is reclassified into tobacco of inferior quality, known as “boliche”, and tobacco of superior quality. The “boliche” is not stemmed, but merely fumigated and packed for shipment. The tobacco of superior quality which is to be stemmed is first dipped in water to soften it for the purpose, and then the moistened leaves are left in piles for several days. After this the piles are separated into packages called “pesadas” weighing 5 or6 pounds and these “pesadas” are wrapped in cloth and taken to a steaming room from which they are later removed for delivery to the stem-mers. Stemming consists in removing the central vein or rib from the tobacco leaf. It is performed manually, usually by women, who hold the point of the vein or rib in their teeth and pull away the sides of the leaf with their hands. The separated leaves of tobacco after stemming are roughly classified by the stemmer and stacked by her on the bench at which she works. Employees known as reviewers check her work, and then carry the stemmed leaves to a place in the warehouse where they are collected for baling into bulks or “’tongas” for a second fermentation process similar to the one already described, but lasting only about a month. When the second fermentation process is complete, the tobacco is dried, sorted, classified according to quality, and packed for shipment to the United States. In addition to the employees engaged in the processes described, the Association also has two or three employees in each warehouse who work during the harvesting season in dispatching material such as fertilizer, cord, Paris green, etc., to the members, and one or more others who deliver this material to the members by truck. It also employs laborers who move tobacco from place to place in the warehouses to prevent spoilage by heat, other laborers who collect,' clean and fumigate the scrap tobacco resulting from the stemming process, repair and maintenance men, men who move bales of tobacco ready for shipment, and persons who perform the necessary supervision, clerical and office work. The Administrator concedes, but only for the purpose of this case, “that within the meaning of the applicable regulations and terms of the law, employees engaged in the receipt of stalk-out-tobacco, in the classification and bulking of such tobacco and in the reclassification, packing, moving and fumigating of such tobacco prior to stemming are exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act, by virtue of Section 13(a) (10) when they are engaged in the listed occupations in an establishment which is a first concentration point for such tobacco.” And, as already pointed out, the Administrator also concedes that the defendant’s warehouses and stemmeries are in fact first concentration points for tobacco within his own definition. Furthermore the Administrator concedes that the defendant has paid at least the legal mipimum wage of 27 cents per hour to all of its employees engaged in processing operations from wetting in preparation for stemming on to final shipment. Nor does he allege that the defendant has violated any of the provisions with respect to maximum hours of employment contained in § 7 of the Act. The conduct of the defendant, which it admits, of which the Administrator complains is the employment of certain of its employees during the same workweek both on work which he concedes is exempt from the minimum wage provisions of the Act and on work which he contends is not exempt, and the payment of those employees at the rate of 27 cents per hour for their time on allegedly non-exempt work but only 25 cents per hour for their time on conced-edly exempt work. He contends that this split workweek basis for paying these employees is in violation of the Act; they being entitled to the 27 cents per hour minimum wage for every hour worked in every week in which any part of their work is non-exempt. And the Administrator also contends that the defendant has failed to keep the records required by § 11(c) of the Act with respect to its stemmers, who are paid piece rates, although he concedes that these employees are not employed more than 40 hours in any workweek and are paid substantially more than the legal minimum wage. The defendant on this appeal rests its defense solely upon the broad dual proposition, first, that all of its employees are exempt from the provisions of the Act for the reason that they are employed in agriculture, within the meaning of § 13(a) (6), and second, that they are also exempt from the provisions of the Act for the reason that they are employed within the area of production in handling and preparing agricultural commodities in their raw or natural state for market, within the meaning of § 13(a) (10). The defendant’s contention that its employees fall within the exemption of § 13(a) (6) because they are “employed in agriculture” as' that term is defined in § 3(f) must be categorically rejected on the authority of Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, in which the Supreme Court rejected the same contention with respect to the employees of an incorporated mutual ditch company organized on a non-profit basis by a group of farmers in Colorado for the purpose of collecting, storing, and proportionately distributing water to its farmer-members for irrigation purposes. In- its opinion in the above cited case the court pointed out, 337 U.S. at page 762 et seq., 69 SJCt. at page 1278, that the definition of agriculture in § 3(f) had two branches — first a-“primary meaning” which includes “farming in all its branches”; specific farming practices, such as cultivation and tillage of the soil, dairying, etc. being listed as illustrative, and a secondary broader meaning which includes “any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with” farming operations within the primary definition. Then the court said that -clearly the operations of the irrigation company, and we must say the same with respect to the operations of' the defendant marketing company, did not fall within the primary meaning of agriculture as defined in the above section of the Act for the reason that it owned no farms and raised no crops, and hence could not be said, 337 U.S. at page 764, 69 S.Ct. at page 1279, to be “engaged in cultivating or tilling the soil or in growing any agricultural commodity.” Following this the Supreme Court rejected the contention, not advanced in the case at bar, that the employees of the irrigation company come within the exemption because its activities were necessary to the production of agricultural commodities, and then, coming to the secondary branch of the definition, the court pointed out that to qualify for exemption the work must be done “by a farmer or on a farm.” It then said, and we must say also: “In the present case it is clear that the work of the company’s employees is done neither on a farm or by farmers.” The Supreme Court next went on to state and reject a further argument advanced by the irrigation company, and one also advanced by the marketing company in the case at bar. The -court said, referring to the work of the employees of the irrigation company, “Clearly, it is not done on a farm. Nor, we think, is it done ‘by a farmer.’ Since we have already said that the company’s employees are not engaged in farming, it is perhaps too obvious that the work that they do is n-ot done by farmers. But an argument to the contrary is made. It is based on the fact that the company is a'mutual one, owned by the farmers whom it serves. It is argued that the company is therefore merely a formal' conduit or agent, by which the farmers cooperatively operate their common water supply system and cooperatively employ the men'. The men are, therefore, said to be farmers because they are said to be employed by farmers.” The Supreme Court answered the above argument by first pointing out that “There is a difference between the hiring of mutual servants by a group of employers and the creation by them of a separate business organization, with its own officers, property, and bonded indebtedness, which in turn hires working men”, and then pointing out that “Those working men are in no real sense employees of the shareholders of the organization. They are hired by the organization, fired by the organization, -controlled and directed by the organization, and paid by it.” And following this the court continued: “The fact -that the organization is a corporate one adds to the picture but is not controlling. The controlling fact is that the company has been set up by the farmers as an independent entity to operate an integrated, unitary water supply system. The function of supplying water has thus been divorced by the farmers from the farming operation and set up as a separate and self-contained activity in which the farmers are forbidden, by the company's by-laws, to interfere. Those employed in that activity are employed by the -company, not by the farmers who own the company. The fact that the company is not operated for profit is immaterial. • It is nonetheless the employer.” On the basis of the foregoing the court concluded that the irrigation company employees were not exempt under § 13(a) (6) from the coverage of the Act. The Farmers Reservoir & Irrigation Co. case is squarely in point in all material respects and rules the case at bar so far as § 13(a) (6) is concerned. Indeed the language of the Supreme Court in that case is directly applicable, nmtatis nmtandis, to the case at bar. See also to the same effect the decisions of this court in Bowie v. Gonzalez, 117 F.2d 11; Calaf v. Gonzalez, 127 F.2d 934; Vives v. Serralles, 145 F.2d 552, and McComb v. Super-A Fertilizer Works, 165 F.2d 824. We turn, therefore, to the defendant’s further contention that its employees are nevertheless exempt under § 13(a) (10) of the Act which in so far as material provides that the minimum wages and maximum hours sections of the Act, §§ 6 and 7, shall not apply with respect to “any individual employed within the area of production (as defined by the Administrator), engaged in handling, packing, storing, * * * drying, preparing in their raw or natural state * * * agricultural or horticultural commodities for market * * The argument of the defendant is that its employees are working in an area of production as defined by the Administrator, which he admits, and that they are engaged in handling and preparing for market an agricultural or horticultural commodity, which the Administrator concedes, in its raw or natwral state, which the Administrator denies. The crucial words are those in italics; the specific question being whether tobacco continues to be in its “raw or natural state” after stemming or whether it does not. The court below found as a fact on the testimony of the Administrator’s expert witness that the process of fermenting leaf tobacco as described in the stipulation “produces a chemical change in the tobacco by making it milder and sweeter”, [80 F.Supp. 953, 954] and in the course of its memorandum opinion that court held “that the stemming and fermenting of leaf tobacco are operations which change the form and nature of the tobacco and is a processing operation rather than ‘handling, packing, storing’”, etc. of agricultural or horticultural commodities “in their raw or natural state”. Wherefore that court concluded as matter of law that: “Defendant’s employees engaged in fermenting leaf tobacco and in stemming leaf tobacco and in any handling of tobacco subsequent to those operations are not engaged in handling, packing, storing, drying or preparing tobacco in its raw or natural state within the meaning of Section 13(a) (10) of the Fail-Labor Standards Act of 1938.” Consequently, in view of its holding that the defendant’s employees were not engaged in agriculture within the meaning of § 13(a) (6), with which we agree, and its conclusion that the split workweek basis for paying some of its employees violates the Act and that the stemmers’ records were not kept as the Act requires, with which we are not concerned, it entered the judgment for the Administrator from which this appeal was taken. As the economy of this country is now organized almost all agricultural commodities pass through a series of handling, packing, storing, ginning, compressing, pasteurizing, drying or preparing processes on their way from the farm to the ultimate consumer. And, for reasons not far to seek, see Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, 18, it was obviously the purpose of the framers of the Fair Labor Standards Act of 1938 by it § 13(a) (10) to exclude from the benefits of the Act “any individual employed” in any of the above processes with respect to agricultural or horticultural commodities, provided, first, that the employment was within the area of production as administratively defined, and second, that the employee, except for cannery and creamery employees, who are specifically mentioned, was engaged in working on commodities of the kinds described “in their raw or natural state.” The problem here is to determine at what point in the course of preparation for market leaf tobacco passes from its “raw or natural” state. The words “raw” and “natural” in their statutory setting defy definition in broad terms generally applicable to all agricultural or horticultural commodities. “Raw” is the antithesis of “cooked”, and cooking connotes a chemical change wrought by heat. Thus, since fermenting also produces a chemical change- and usually implies heat, or at least warmth, it may perhaps be likened to slow cooking. But cooking ordinarily implies the application of heat by human means from some source outside the thing cooked, whereas, when conditions are right, ferménting occurs spontaneously and naturally within the thing fermented. And furthermore, the latter process may involve so little heat as to make application to it of the term “cooking” wholly inappropriate. • Moreover, while Cooking and fermenting both produce chemical changes, so also, no doubt, does ripening, and in the case of fruits, the chemical change incident to ripening makes the fruit sweeter and milder. But -certainly ripening cannot appropriately be likened to cooking, or, in all probability, to fermenting. Similar problems arise with respect to the word “natural”. There can be no doubt that Indian corn ceases to be in its natural state as soon as it is ground. But does it remain in its natural state throughout the entire course of its processing previous to grinding, which involves breaking from the stalk, husking, drying and shelling from the cob? A host of other illustrative problems come to mind, but enough has been said to indicate the inherent difficulty, if not the impossibility, of formulating any workable definition of the statutory words applicable generally to all agricultural or horticultural commodities. Specific situations will have to be considered as they arise, and in keeping with the spirit and purpose of the Act a line drawn between exempt and non-exempt employment in accordance with the statutory wording. And, this line must be drawn by the courts, Addison v. Holly Hill Fruit Products, 322 U.S. 607, 64 S.Ct. 1215, 88 L.Ed. 1488, 153 A.L.R. 1007, so that of necessity it must be pricked out by the slow process of deciding concrete cases as they arise. In this case we agree with the line of distinction with respect to leaf tobacco drawn by the court below. Perhaps within the statutory wording it might possibly be drawn a step earlier in the processing, i. e., at the first fermenting, rather than at stemming, but the Administrator’s concession that workers engaged in processing prior to stemming are exempt makes it unnecessary for us to -consider the point. Whether leaf tobacco conies fr-om the first fermentation process “raw” or-not, a very close question perhaps, the leaf certainly was not in its natural state after its central vein or rib was removed. This changed its form. The process is comparable to grinding a cereal grain, for instance, and we think clearly marked the line between exempt and nonexempt work. Our judgment is perhaps arbitrary in the sense that the line could conceivably be drawn somewhere else without doing violence to the statutory language, but in cases of this sort arbitrary judgments in this limited sense cannot wholly be avoided. The best that can be done is to draw a line of distinction with respect to each commodity at some practical point within the statutory language, and this in our opinion is exactly what was done by the court below. We, therefore, agree with the conclusion it reached. The judgment of the District Court is affirmed. Wage Order for the Leaf Tobacco Industry in Puerto Rico promulgated by the Administrator pursuant to §§ 5 and 8 of the Fair Labor Standards Act, which bo-came effective, after publication in the Federal Register, on April 1, 1945. Title 29, Ch. V, Code of Federal Regulations, Part 657. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_appel1_1_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. TAYLOR et al. v. McMANIGAL et al. No. 7427. Circuit Court of Appeals, Sixth Circuit. April 12, 1937. George S. Baldwin and Alexander, McCaslin & Cholette, all of Grand Rapids, Mich. (McKenna, Harris & Schneider, of Chicago, Ill., and George D. Anthony, of Chicago, Ill., on the brief), for appellants. Theodore C. Robinson, of Cleveland, Ohio (Wilbur M. Cunningham, of Benton Harbor, Mich., Robinson & Bleecker, of Cleveland, Ohio, and Francis C. Canny and Frederic W. Johnson, both of Cincinnati, Ohio, on the brief), for appellees. Before MOORMAN, HICKS, and SIMONS, Circuit Judges. HICKS, Circuit Judge. Appellant was the operator of the passenger steamer, City of Grand Rapids, plying between Chicago and Milwaukee on Lake Michigan. At the close of the 1934 season the boat was docked in Benton Harbor. On May 28, 1935, while she was being conditioned there for the 1935 season, Burgoyne Watkins, an employee of appellant and husband of Ellice Watkins, appellee, was, with another employee, engaged in front of the boiler in putting in a pit plate. While at this work, he undertook to adjust an electric light cord and received a shock from which he died. An award was entered in favor of appellee Ellice Watkins against appellant by McManigal, a Deputy Commissioner of the United States Employees Compensation Commission, under the Longshoremen’s and Harbor Workers’ Compensation Act (Act of March 4, 1927, c. 509, 44 Stat. 1424, as amended, U.S.C. tit. 33, §§ 901-950 33 U.S.C.A. §§ 901-950). Appellant brought this suit to enjoin the enforcement of the award. Upon the hearing the bill was dismissed. The sole question was whether Watkins was a member of a crew of the vessel when his death occurred, for, if he was, no compensation was payable. Section 903, 33 U.S.C.A., section 3 of the act, supra. The court found that he was not a member of the crew. At the outset we are confronted with a controversy over the question of the proper rule for decision by the District Court. Section 921(b) provides that an injunction may issue against the collection of the award “if not in accordance with law.” Appellee insists that under this statute the court was limited on its review of the findings of fact by the Deputy Commissioner in connection with the evidence to the question whether there was any substantial evidence to support them. If there was such evidence, the award was in accordance with law and the decree should be affirmed. Appellant contends that whether Watkins was a member of the crew was a jurisdictional question because if he was, the act excluded him from its protection (sections 902(3), 903(1) U.S.C., 33 U.S.C.A. §§ 902(3), 903(1); that the Deputy Commissioner was unauthorized to make any award at all; and that the injunction proceeding should have been heard and determined de novo without regard to the findings of the Deputy Commissioner. Appellant’s position is based upon Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598. We are relieved from determining which procedure should have been adopted because the court, after using each of them, came to the same conclusion. The only evidence was that submitted to the Deputy Commissioner. The court not only found that there was substantial evidence to sustain the findings of the Commissioner, but that the weight of the evidence was that Watkins was not a member of the crew. If the latter finding was correct, so was the first and the decree should be sustained. A. O. Smith Corporation v. Petroleum Iron Works Co., 73 F.(2d) 531, 538 (C.C.A.6). The evidential facts are not in dispute. The question is as to the inference that should be drawn from them. The City of Grand Rapids was a steel combination freight and passenger vessel, 115 feet long, with a capacity of 2,280 passengers. She lay at the dock at Benton Harbor until June 27, 1935, when she made her initial run between Chicago and Milwaukee for that season. She carried a crew of 120. Appellant began to recondition her on the 1st of May. On that date he employed John Golden as chief engineer for the season. He was authorized to hire assistants and the necessary help to get the boat ready and to operate her when she was commissioned. He employed Gustafson as first assistant and the deceased as second assistant. Deceased began work on May 1. Golden also employed 6 or 7 helpers and added others from time to time until there were 21 in all. The work that Gustaf-son, Watkins, and the helpers were doing from May 1 up to the time deceased was killed was the usual fitting out of the boat for service, such as putting pumps together, grinding valves, replacing pipes, building bridge walks, and putting in grates. Appellant also employed Oscar Byork about May 15 and put him in charge of a gang of 10 men employed in fitting out the fore end of the steamer, doing repair work, cleaning life boats, getting rigging and life crafts ready, and painting the interior. This gang was doing this character of work when deceased lost his life. Four of these men later sailed with the boat and the others went ashore. Byork testified that during the time the boat was being conditioned he was just foreman of the paint and fit-out crew and was paid by the day, but that when the boat sailed he was employed as first mate at a salary of $1,000 for two months. The second mate came aboard shortly before June 15, worked for a time at the fit-out work at the hourly rate paid other helpers, but was given the regular season’s pay when the season started. One carpenter was engaged in repair work but was not under the supervision of anybody. There was still another gang of about 20 men in charge of John L. Devins, who was employed by appellant about the 1st of May. Their duties were to fit out the steward department and do such work as scrubbing and cleaning, and they were paid by the hour. Devins testified that before the boat sailed he was superintending the scrubbing and cleaning, but when it sailed he became the chief bar tender. It was expected that many of the helpers would sail with the boat in different capacities, such as firemen, coal passers, water tenders, oilers, watchmen, bellboys, porters, and many of them did but they were under no obligation to do so. Appellant testified in substance that he never knew until just before the boat sailed who would constitute the crew because “every one had a right to change his mind.” To the question, “But when you get ready to sail you choose the crew?” he answered, “Yes. * * *” B. F. Morgan, the captain, was employed on June 21 and came on board on the 25th. The vessel was without a cook until it sailed and for that reason the three engineers were each paid $2 a day extra for their board ashore for thirty days of the fitting out period. The presumption is that in the absence of substantial evidence to the contrary the claim comes within the provisions of the statute (section 920(a), U.S.C., supra, 33 U.S.C.A. § 920(a). We think that the preponderance of the evidence is to the same effect. The deceased was killed while working as a mechanic. He had not assumed the duties of assistant engineer. The most that may be said is that he, with the other men working on the boat, expected to become members of the crew when it was organized and when the vessel was ready to sail. The commonly accepted meaning of the word “crew” is the whole company which mans a ship and aids in the navigation, or the “ship’s company.” See Seneca Washed Gravel Corporation et al. v. McManigal et al., 65 F.(2d) 779 (C.C.A.2); DeWald v. Baltimore & Ohio R. Co., 71 F.(2d) 810, 813 (C.C.A.4); United States v. Winn, 28 Fed.Cas. p. 733, No. 16,740; The Bound Brook, 146 F. 160, 164 (D.C.). The decree is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_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 MORROW v. TILLINGHAST, Commissioner of Immigration. Circuit Court of Appeals, First Circuit. October 17, 1929. No. 2352. James H. Kenney, of Boston, Mass., for appellant. John W. Sehenek, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee. Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. PER CURIAM. In the District Court for Massachusetts the appellant’s petition for a writ of habeas corpus was denied for want of jurisdiction. The immigration authorities found that at the time of her entry into the United States the appellant was mentally deficient; that her mental impairment was such as then to render her liable to become a public charge; and ordered her deported. There was substantial evidence to warrant these findings. They are therefore final.. Appeal dismissed. 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_decisiontype	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. January 21, 1966. No. 1111, Misc. Chandler, U. S. District Judge v. Judicial Council of the Tenth Circuit of the United States. Thomas J. Kenan for petitioner. Solicitor General Marshall for respondent. Application for stay of order. Petitioner applied to Mr. Justice White, Circuit Justice for the Tenth Circuit, for “Stay of Order of Judicial Council of the Tenth Circuit of the United States” in the above matter, and the application was by him referred to the Court for its consideration and action. It appearing to the Court from the response of the Solicitor General to the application that the order from which relief is sought is entirely interlocutory in character pending prompt further proceedings inquiring into the administration of Judge Chandler of judicial business in the Western District of Oklahoma, and that at such proceedings Judge Chandler will be permitted to appear before the Council, with counsel, and that after such proceedings the Council will, as soon as possible, undertake to decide what use, if any, should be made of such powers as it may have in the premises, it is hereby ordered that the application for stay be denied pending this contemplated prompt action of the Judicial Council. The Court expresses no opinion concerning the propriety of the interlocutory action taken. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_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 UNITED STATES of America, Plaintiff-Appellee, v. Maxine FORREST, Defendant-Appellant. No. 79-5335. United States Court of Appeals, Fifth Circuit. Unit B March 16, 1981. Marc Cooper, Sharon L. Wolfe, Miami, Fla., for defendant-appellant. Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., Donald S. Modesitt, Kenneth W. Sukhia, Asst. U. S. Attys., Tallahassee, Fla., for plaintiff-appellee. Before GODBOLD, Chief Judge, and TJOFLAT and VANCE, Circuit Judges. VANCE, Circuit Judge: This is an appeal from a conviction of perjury. 18 U.S.C. § 1621. Appellant Maxine Forrest, along with her husband, William Henry Forrest, was first convicted in federal district court of knowingly buying, receiving and possessing a tractor-trailer rig and its contents, a load of eggs. On appeal, this court reversed Maxine Forrest’s conviction because the evidence was not sufficient to establish that she knew the goods were stolen. See United States v. Forrest, 620 F.2d 446, 449-51 (5th Cir. 1980). Prior to this court’s ruling,' the government instituted the present case charging that appellant had perjured herself during her first trial. The indictment charged that Forrest lied in denying telephone conversations between herself and one Ralph Parris on June 19, 1978 about his purchase of some of the stolen eggs. At the perjury trial, Parris testified that he was first contacted about the stolen eggs by William Forrest on June 19. He stated that he later made three telephone calls to Maxine Forrest during which he told her that he would take thirty cases of eggs and would pay for them partly by check and partly in cash. He testified that he received the eggs and paid for them in the manner agreed upon. To corroborate Parris’ testimony, the government called Edwin Hodge and David Coker. Hodge was an employee of Forrest Mobile Homes. He testified that on or about June 19 he unloaded some of the stolen eggs onto a pickup truck at Maxine Forrest’s direction. He stated that he made three deliveries of the stolen eggs but was not involved in the delivery of any eggs to Parris whom he did not know. The money he received was returned to Maxine Forrest at the order of William Forrest who had left town the previous day to go to Denver. According to Hodge, Mrs. Forrest was running the business in her husband’s absence. He testified that he thought she was making the contacts with purchasers, but stated that he didn’t know anything about anyone ordering eggs or about any conversations with Parris about eggs. When questioned by purchasers about the origin of the eggs, he gave them a story he had been instructed to offer them by William Forrest. David Coker testified that he had worked for William Forrest and had been involved in the delivery of three loads of the stolen eggs. The first load had been delivered at William Forrest’s direct order. The second and third loads, which included the delivery to Parris, were apparently made at Hodge’s direction. Parris paid Coker for the eggs partly in cash and partly by check. Coker somewhat uncertainly recalled giving the money he received to the Forrests’ son who assisted him in his deliveries. Appellant raises several grounds of error including questions of double jeopardy. Because we find that the government failed to meet its burden under the so-called “two-witness” rule, we address only this contention. It is well established that “to authorize a conviction for perjury the falsity of the statement alleged to have been made by the defendant must be established either by the testimony of two independent witnesses, or by one witness and independent corroborating evidence which is inconsistent with the innocence of the accused.” McWhorter v. United States, 193 F.2d 982, 983 (5th Cir. 1952). As the Supreme Court stated in Weiler v. United States, 323 U.S. 606, 609, 65 S.Ct. 548, 550, 89 L.Ed. 495 (1945), “[IJmplicit in [the] evolution and continued vitality [of the two-witness requirement] has been the fear that innocent witnesses might be unduly harassed or convicted in perjury prosecutions if a less stringent rule were adopted.” No detailed rule has been laid down describing the precise nature of the corroboration required by the rule. 7 J. Wigmore, Evidence § 2042 at 365 (rev. ed. J. Chadbourn 1978). See generally Annot. 49 A.L.R. Fed. 185 (1980). This circuit, however, has defined its requirements to some extent. The corroborating evidence must be “inconsistent with the innocence of the accused,” Cuesta v. United States, 230 F.2d 704, 707 (5th Cir. 1956) (quoting McWhorter, supra, 193 F.2d at 983) and we have noted that the evidence must be “of a quality to assure that a guilty verdict is solidly founded.” United States v. Forrest, 623 F.2d 1107, 1111 (5th Cir. 1980) (quoting United States v. Maultasch, 596 F.2d 19, 25 n.9 (2d Cir. 1979)). Our fullest statement of the evidence required by the two-witness rule is found in Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962). There, we noted that “the corroborating evidence need not be sufficient to establish independent commission of the crime charged beyond a reasonable doubt or even by a preponderance of the evidence.” Id. at 307. We went on, however, to stress that the corroborating evidence must be independent: To sustain a conviction for perjury the evidence must be strong, clear, convincing and direct. Where the government seeks to establish perjury by the testimony of one witness and corroborating evidence, the latter must be independent of the former and inconsistent with the innocence of the defendant. “When the courts speak of corroborative evidence they mean evidence aliunde — evidence which tends to show the perjury independently.” Id. at 308-09 (quoting United States v. Neff, 212 F.2d 297, 306-07 (3d Cir. 1954)). Our cases thus make clear that the corroborative evidence must be inconsistent with the innocence of the accused and must tend to show the perjury independently of the testimony which it is intended to corroborate. The evidence by the government fails to meet these requirements. The testimony indicates that Maxine Forrest took an active role in running her husband’s business in his absence, that she ordered the loading of eggs, that she received payment for some of the deliveries, and that Parris received and paid for the eggs in the manner he allegedly discussed with her. While the corroborative evidence is not inconsistent with the hypothesis of Forrest’s guilt, it is in no way whatsoever inconsistent with the hypothesis that she never discussed eggs with Parris. The gaps in the evidence are glaring. Neither Hodge nor Coker testified that Maxine Forrest ordered the delivery of eggs to Parris. Indeed, neither witness indicated that she ever gave them any name or address to which to deliver eggs. On the other hand, Coker testified that at least one of his deliveries was made at the direct order of William Forrest who also spoke to Hodge on the phone from Denver. Hodge brought the money he received for deliveries to Maxine Forrest not at her orders but at the orders of her husband. Similarly, William Forrest prepared him with a story to give customers if asked about the origin of the eggs. Although Hodge thought Mrs. Forrest was “making contacts,” he stated that he knew nothing about any orders of eggs and was not involved in any delivery to Parris. Coker, who actually delivered the eggs to Parris, never testified to any conversations with Maxine Forrest at all. Nor did he return the money he received for the delivery to her. He appears to have taken orders exclusively from William Forrest and Hodge. While the facts of each perjury case must be considered individually, other decisions in this area shed light on the requirements of corroborative evidence. In Paternostro v. United States, supra, defendant, a policeman, was convicted of perjuring himself when he testified that he neither knew of nor had participated in a graft system. One witness testified directly that defendant had participated in the system. One other witness testified that he had received graft money in envelopes similar to those described by the first witness. The evidence that the graft system existed was found not to be sufficient to corroborate the chief witness’ claim that the defendant knew of it personally. A comparison with the present case reveals parallel problems with the nature of the corroborative evidence. While the testimony of Hodge and Coker establishes that Parris received and paid for stolen eggs and that Mrs. Forrest was aware of some egg deliveries, it fails to indicate that she personally arranged the delivery of eggs to Parris. The facts of United States v. Freedman, 445 F.2d 1220 (2d Cir. 1971) are also illustrative. In Freedman, the defendant had been convicted of perjuring himself in testifying to the SEC that with one exception he had had no profit-sharing arrangements with any customer. Another customer testified to contradict this statement. As corroboration, the government introduced the check given by the witness to the defendant’s family concerning which he had testified. In reversing the conviction the court stated: “The crucial concern, that of an explanation of the transaction underlying the giving of the check, is not independently explained by proving the check’s existence and its negotiation. Absent [the customer’s] definition of the deal, it is devoid in and of itself of any persuasiveness as to why it was given.” 445 F.2d at 1226. In the present case, the thrust of the corroborative evidence was that Parris had received the eggs and paid for them. Absent Parris’ own explanation of the delivery, the corroborative evidence is similarly devoid of any persuasiveness as to his discussion of the deal with Maxine Forrest. After carefully considering the evidence, we conclude that the testimony offered to corroborate Parris’ statements is not inconsistent with Forrest’s denial of telephone conversations and does not tend to show her perjury independently. We reverse and remand for entry of judgment of acquittal. REVERSED and REMANDED. . The jury was instructed that Maxine Forrest was charged with having perjured herself during the following testimony concerning her phone calls with Parris: Q Let’s talk about June of 1978. Do you know what he owned then? A Taco Tex. We go by and visit him quite a bit. We’re all friends. Q Right. Now, did you telephone him on Monday morning, June the 19th of 1978, and tell him that you had a surplus of eggs? A No, sir, I did not. Q You unequivocally say absolutely not? A No, sir, I did not. Q It’s not a question of you not remembering or something of that nature? A Well, I do not remember calling Mr. Parris on Monday. No, I do not remember that. Q Now, wait a minute. Now you’re saying you don’t remember or are you saying it did not happen? A I did not, that I remember. Q Are you telling me you might have called him about some eggs that you had? A No, I did not call Mr. Parris on Monday. No, sir. Q I want to be sure about this. A Yes, sir. Q I want you to either say yes or no, if you can, or you don’t remember. A I don’t remember. Q So you might have called him about some surplus eggs? A No, sir, I would not have called him about surplus eggs but I might have talked to Mr. Parris Monday morning. But, no, sir, I have not called him about no eggs. Q You’re aware of the perjury charges, that they might be brought against you if you lied and it’s proven? You understand that? A Yes, sir. Q All right. I want to pin you down on this one question and I want an answer and I want you to tell me an answer that you can stick by in good conscience. I want to know, and I’m going to ask it as plain as I can, if you called Ralph Parris on Monday morning, June 19 of 1978, and told him that you had a surplus of eggs. A No, sir, I did not call Mr. Parris on Monday morning and tell him that I had no surplus of eggs. Q All right. Thank you. Did Mr. Parris inform you that the deal sounded suspicious to him and that he informed you of that? A Mr. Parris has not informed me anything, because I haven’t called Mr. Parris about no eggs. Q Did you tell Mr. Parris that the deal was perfectly legitimate? A I have not talked with Mr. Parris about any eggs. Q Did Mr. Parris tell you he would take thirty cases of eggs? A I have not talked with Mr. Parris about any eggs. I mean, he’s a friend of mine, him and his wife, but I have not discussed any eggs with Mr. Ralph Parris, no, sir. Q Did Mr. Parris make a call, a return call, to you on the same day and ask you how you desired payment? A No, sir. Q Did you tell Mr. Parris that he was to pay the two men who made the delivery in cash, that they would bring the cash to you? A No sir. Another count of the indictment charged Mrs. Forrest with perjury in denying that she had ordered “two male individuals to deliver thirty cases of eggs to Mr. Parris.” The trial court dismissed this count since no testimony whatever was received on this matter. . The same count of the indictment charged defendant with having perjured himself on a related matter when he testified that he had not solicited money from an operator of an illegal business. Although one witness testified that defendant had solicited money from her, the testimony of a second witness as to solicitation was found to be insufficient corroboration since she was unable to identify the defendant. 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_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. CHICAGO & N. W. RY. CO. v. GREEN. No. 13558. Circuit Court of Appeals, Eighth Circuit. Oct. 27, 1947. Alfred E. Rietz, of St. Paul, Minn. (Lowell Hastings, of Chicago, 111., on the brief), for appellant. Sidney S. Feinberg, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee. Before SANBORN, THOMAS and JOHNSEN, Circuit Judges. JOHNSEN, Circuit Judge. The appeal is from a judgment recovered by a brakeman against the Chicago and North Western Railway Company, on a jury trial, under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained in a derailment. The train involved was a passenger train of 16 cars running from Chicago to Omaha. The derailment occurred about 3% miles west of Colo, Iowa. The last 6 cars of the train and the rear wheels of the preceding car all left the track. This resulted in the rails being torn up for some distance, as the train was being brought to a stop. When the track left standing was examined, it was found that one of the rails had broken or snapped off about 12 to 15 inches from the point where it was joined to-the preceding rail. According to the testimony of plaintiff,, the rail “looked like it had been partly broken before”, in that the break “sort of looked part new and part rusty.” He testified also that some of the ties were torn, out and broken by the derailment and that “these ties were rotten-—-they were spongy-like.” “Where they had broken in two, you could see the inside was solid and the outer side was rotten and soft.” He further testified that at Clinton, Iowa,, a “slow order” had been given the crew,, which directed them “to run slow for a mile and a half” on leaving Colo. The cross-examination of the engineer showed that the train was running between 50 and 60 miles per hour as it approached the place of the derailment and that it was-somewhat late. Plaintiff was the rear brakeman on the train and was sitting in the smoking compartment of the last car at the time of the-accident. He claimed to have been thrown to the floor under a wash basin and to-have struck his back on some pipes, with the result that a herniated intervertebral disc developed. The complaint relied upon the doctrine of res ipsa loquitur. It also, however, contained a general allegation that “Defendant so negligently, recklessly and carelessly controlled, managed and operated said train that the same was caused to be derailed.” On the trial, plaintiff further orally requested and was granted leave to amend the complaint “so that it may allege in substance that the defendant so negligently conducted its general business of railroading and was so negligent * * * that the train upon which the plaintiff was employed was caused to be wrecked.” No formal amendment of the complaint itself was made. To show the cause of the accident and the absence of any negligence on its part, defendant undertook to prove that the derailment was due to a transverse fissure, i. e., to an internal defect and deterioration in the head of the rail; that this fissure had spread over 30 per cent of the head and produced a weakness that made the rail break and snap off as the engine and the first cars of the train passed over it; that the fissure was not externally visible and so could not be detected in the patrol inspections which defendant daily made of its tracks and roadbed; that the only means known for detecting such an internal fissure was by the use of a special electrical-contact machine, known as the Sperry detector, which was not purchasable but was merely rentable from the manufacturer, and which defendant had thus rented and run over its tracks twice a year; and that such a test with the Sperry detector had last been made of the rails involved 4% months before the accident, at which time all the rails in the track which the detector then showed to be fissured were removed and replaced. To further establish that the rail was not previously broken, defendant also showed that the engine was equipped with an electrical signal box in front of the engineer, which would turn red at a distance of 11,000 feet from a broken rail or other traffic obstruction, such as a train ahead, that disrupted the electrical circuit in the track; that the signal box was part of an automatic train control system and whenever it thus was caused to turn red, unless the engineer immediately pushed an acknowledging lever and assumed control of the brakes, the brakes would set mechanically and the speed of the train would be reduced to 17 miles per hour; that on the occasion in question, according to the engineer’s testimony, the signal box did not turn red until “just about the place where it [the rail] went out”; and that the engineer thereupon immediately applied the brakes and sought to bring the train to a stop. Defendant contends that on this explanation and showing it was entitled to a directed verdict and that the trial court erred in denying its motion. But assuming that the fissure was the cause of the breaking of the rail and of the wreck, the question whether defendant had exercised reasonable care to avoid the accident was still one of fact for "the jury and not one of law for the court. For instance, the court could not on the testimony have declared as a matter of law that a use of the Sperry detector more often than once every six months would have been physically, practicably or economically impossible, or that it was not otherwise reasonably necessary. As a matter of fact, it was not even shown that such a semi-annual use constituted the recognized standard in the railroad world for dealing with the technical problem. Again, if the evidence as to the. order given at Clinton to run the train slow on leaving Colo was properly admitted by the trial court (which question will be later considered), the engineer’s admission that the train was late at the time and was traveling at 50 to 60 miles per hour also made the situation subject to the inference, in the light of the “slow order”, that defendant had not fully explained all the circumstances connected with the accident and that a disregarding of the “slow order” (the reason for whose issuance was not shown) may perhaps have been a factor in the derailment. Further, the testimony of plaintiff, if believed, that the break in the rail seemed to be “part new and part rusty” and “looked like it had been partly broken before”, and that the ties were “rotten and spongy-like”, when considered with the evidence of speed and the engineer’s admission that a mere partial break in the rail might not disrupt the electrical circuit, so as to cause the signal box in the engine to turn red as the train approached the point, similarly could be accepted by the jury as elements of inference on the inabsoluteness of defendant’s explanation of the accident and on its possible causative factors. In connection with what we have said, there must be kept in mind the emphasis in the recent decisions of the Supreme Court that the scope of jury inference in cases under the Federal Employers’ Liability Act must be liberally and not narrowly or stultifyingly viewed. See Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. Cf. also Chicago & N. W. R. Co. v. Grauel, 8 Cir., 160 F.2d 820. And traditionally, even more plenary than in cases requiring proof of specific negligence is the scope of inference which has been recognized as being open to a jury in situations of res ipsa loquitur. Thus, it was said in the somewhat early case of Gleeson v. Virginia Midland Railroad Co., 140 U.S. 435, 444, 11 S.Ct. 859, 862, 35 L.Ed. 458: “When [the plaintiff] proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. * * * And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” Only where the defendant’s evidence of explanation and exculpation is so legally absolute that no possible hypothesis of proximate negligence can reasonably survive it on the facts and circumstances of the accident is a court entitled to direct a verdict in a res ipsa loquitur case. Cf. Myers v. Pittsburgh Coal Co., 233 U.S. 184, 193, 34 S.Ct. 559, 58 L.Ed. 906. And these in cases under the Federal Employers’ Liability Act will be situations of “the rarest exceptions”. Terminal R. Ass’n of St. Louis v. Staengel, 8 Cir., 122 F.2d 271, 276, 136 A.L.R. 789. See also Southern Ry. Co. v. Hussey, 8 Cir., 42 F.2d 70, 73, 74, 74 A.L.R. 1172. Of even more specific application here is the recent decision of the Supreme Court in Jesionowski v. Boston & M.R.R., 329 U.S. 452, 458, 67 S.Ct. 401, 404, 91 L.Ed. —, which, like this, was a derailment case and in which the court said: “Derailments are extraordinary, not usual, happenings. When they do occur, a jury may fairly find that they occurred as a result of negligence. * * It would run counter to common everyday experience to say that, [where the defendant was the exclusive controller of all the factors which may have caused the derailment] the jury was without 'authority to infer that either the negligent operation of the train or the negligent maintenance of the instrumentalities [involved] was the cause of the derailment.” The evidence which has been set out above and the authorities cited make unnecessary, we think, any further discussion of defendant’s contention that there was no basis for allowing the jury to decide whether defendant had been guilty of proximate negligence in the operation of its train or in the maintenance of its track and roadbed. For the court to have taken these questions from the jury, as defendant requested, would clearly have been error. Defendant further contends that, if the case was one for the jury, it was error for the court to deny its request for a specific instruction on its explanation and defense that the derailment was due solely to the development of a fissure in the rail and that this fissure could not have been discovered by the exercise of reasonable care so as to make defendant chargeable with responsibility for the accident. The instruction, which was timely requested, was in the following language: “There is evidence in this case that the derailment in question was caused by the breaking of the rail in the track. There is also evidence that the breaking o.f the rail was Caused by what is known 'as a fissure in the rail. The defendant contends that a fissure is a progressive deterioration of the rail and that the fissure could not have been discovered by the exercise of reasonable care or inspection of the rail by the defendant. You are instructed that if you find by a fair preponderance of the evidence in this case that the derailment was caused by a fissure and that such fissure could not have been seen or that it could not have been discovered by the defendant by the exercise of reasonable care, then your verdict must be for the defendant.” The court instructed generally as a matter of res ipsa loquitur that the jury might “draw an inference of negligence on the part of the defendant, in the absence of an explanation by the defendant that the accident did not arise from its want of reasonable care”; that it was for the jury “to decide whether the defendant in this case made explanation that satisfies you”; that if the jury found that plaintiff was injured in the accident and “that the accident and injuries to the plaintiff were the result of the failure of the defendant to use due care in the operation of its train or its failure to have and maintain its tracks and roadbed in a reasonably safe condition, then the defendant was negligent and if such negligence was, in whole or in part, the proximate cause of the accident, then your verdict should be for the plaintiff”; and that if the jury found that there had been no such negligence on the part of the defendant, or that if the defendant had been negligent but its negligence was not the" proximate cause of the accident, or that the plaintiff, as claimed by the defendant, had not been injured in the accident, then a verdict should be returned for the defendant. The instructions made no direct reference to the matter of a fissure, except in the enumeration to the jury of the undisputed facts, where the court merely said: “It is admitted that there was a fissure in the rail at the place where it was broken.” The requested instruction sought to expressly put before the jury defendant’s theory of the accident and to apply concretely to that theory, if the jury accepted it, the test for determining defendant’s liability in the situation. Defendant, in providing in the instruction that “a fair preponderance of the evidence” was necessary to entitle the jury to find that the derailment was caused solely by the fissure and that defendant could not have discovered the fissure through the exercise of reasonable care in maintaining or inspecting its tracks, had imposed upon itself a greater burden than it legally was required to assume, but this obviously could not constitute error against the plaintiff which would justify the refusing of the instruction. In the technical scales of liability, it is of course the existence of negligence and not its non-existence that is required to be preponderantly established in a res ipsa loquitur case, as in any other, either on the basis of the general inferences possible in such a situation or of any specific proof of lack of care which the evidence may show, We think the refusal of the court to give the requested instruction, either in its tendered form or in a restatement of its material substance, was error. It has long been the rulé that, as against a mere general or abstract charge, a party is entitled to a specific instruction oil his theory of the case, if there is evidence to support it and if a proper request for such an instruction is made. 53 Amjur., Trial, § 626, pp. 487, 488. See also Western Union Tel. Co. v. Morris, 8 Cir., 105 F. 49, 54; Northern Central Coal Co. v. Hughes, 8 Cir., 224 F. 57, 59; Ranney v. Barlow. 112 U.S. 207, 214, 5 S.Ct. 104, 28 L.Ed 662; Pennock v. Dialogue, 2 Pet. 1, 15, 27 U.S. 1, 15, 7 L.Ed. 327. In fact, even a request for an instruction which is not entirely perfect may in some situations impose upon the court the duty to give a more specific instruction on a particular issue, where it soundly appears that such an instruction is needful to enable the jury to intelligently determine the question. Cf. E. I. Du Pont De Nemours & Co. v. Frechette, 8 Cir., 161 F.2d 318, 323; Feldmann v. Connecticut Mutual Life Ins. Co., 8 Cir., 142 F.2d 628, 631; Pfotzer v. Aqua Systems, 2 Cir., 162 F.2d 779, 783. As we have indicated, the court had instructed that the jury was entitled to draw an inference of negligence against defendant in its operation of the train or in its maintenance of the tracks and roadbed, “in the absence of an explanation by the defendant that the accident did not arise from its want of reasonable care”, and that it was for the jury to decide whether defendant had made such an explanation as satisfied it. With the matter thus broadly left to the jury, the importance to the defendant of having the court further call to the jury’s attention that the explanation and defense which the defendant had undertaken to make were that the accident was caused solely by a fissure in the rail, which it contended it had used reasonable care to detect and by the use of such care could not have discovered or guarded against, and that if the jury so found then defendant would not be liable, would seem to 'be obvious. The court should have given the requested instruction or a restatement of its material substance. The contention also is made that the court’s charge in fact imposed an improper standard of duty upon defendant in the maintenance of its tracks and roadbed. We have previously quoted the portion which told the jury that if “the accident and injuries to the plaintiff were the result of the failure of the defendant to use due care in the operation of its train or its failure to have and maintain its tracks and roadbed in a reasonably safe condition, then the defendant was negligent”. (Emphasis added.) Defendant argues that this language made it in practical effect an insurer of the condition of its tracks and roadbed because its liability was made to depend upon whether it had failed to have and maintain such facilities in a reasonably safe condition and not upon whether it had failed to exercise reasonable care to see that they were in such condition and to keep them so. An employer is of course not an insurer under the Federal Employers’ Liability Act, but his liability is for negligence in not having exercised due care generally on the circumstances of the particular situation or in having failed to perform an express statutory duty. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. -; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 143 A.L.R. 967; Sheaf v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 162 F.2d 110, 113. A literal reading of the language here complained of would make it subject to the objection urged by defendant. But we think the words “to use due care” are reasonably implia-ble in context from the preceding clause of the instruction, so that this portion should and would be read as “failure [to use due care] to have and maintain its tracks and roadbed in a reasonably safe condition”. That this is its natural import from context is confirmed by the fact that defendant itself apparently so understood and accepted it at the time, for it did not on the trial make the objection which it now urges. Furthermore, consideration of any defect in an instruction to which a party has failed to make objection in the'trial court under Federal Rules of Civil Procedure, Rule 51, 28 U.S.C.A. following section 723c, is a matter of grace, and not of right, for an unusual and inherently unfair situation only. No such situation is involved on the present instruction. A number of errors are alleged in the admission of evidence and in refusals to strike. On these contentions generally, it is necessary to keep in mind first of all that “Rulings on the admissibility of evidence must normally be left to the sound discretion of the trial judge in actions under the Federal Employers’ Liability Act.” Lavender v. Kurn, 327 U.S. 645, 654, 66 S.Ct. 740, 744, 90 L.Ed. 916. It is argued that the court erred in allowing plaintiff to show the condition of the ties, as not being within the allegations of the complaint. A complaint based on res ipsa loquitur is only required to make a general allegation of negligence, and on such an allegation the plaintiff is entitled to show all the conditions and circumstances surrounding the accident not patently wholly remote. 38 Am.Jur., Negligence, § 262, pp. 954, 955. And, if the original allegation in the complaint here, that the derailment was due to defendant’s negligence in the operation of its train, could be said to have limited the cause of the accident to that field and to have excluded any right of reliance by plaintiff upon the condition of the tracks and roadbed, the leave given during the course of the trial to amend the complaint, to allege that defendant was so negligent in the conduct of its general business of railroading that the train was caused to be derailed, clearly made the complaint broad enough to cover any proximate negligence that may have existed in either the operation of the train or the maintaining of the tracks and roadbed or both. Evidence was admitted showing that after the accident plaintiff did not go out as a brakeman except when he drew an easy run and that this gave rise to complaints on the part of the other extra-board men. Defendant had objected that the testimony as to the complaints by the other men was immaterial. It would seem to be wholly immaterial, as defendant contends, whether or not the other men complained of plaintiff’s failure to take his regular extra-board turn, but proof of the fact clearly was not of such prejudicing dignity as to amount to reversible error. A brakeman who had worked with plaintiff after the accident testified that plaintiff appeared to be in great pain when he was out on his run, and the court refused to strike this testimony as conclusionary. It is competent for any witness to testify from observation that a person appeared to be in pain. Isherwood v. H. L. Jenkins Lumber Co., 87 Minn. 388, 92 N.W. 230; Morris v. St. Paul City Ry. Co., 105 Minn. 276, 117 N.W. 500, 502, 17 L.R.A.,N.S., 598; Sturm v. Northwest Mills Co., 114 Minn. 420, 131 N.W. 472, 474. The court similarly was entitled to refuse to strike the testimony of another brakeman, who also had worked with plaintiff after the accident and assisted him in performing some of his duties, that plaintiff “couldn’t get down underneath [the cars] and uncouple the steam, or couple it.” It is within the discretion of the trial court in an action under the Federal Employers’ Liability Act to allow a nonprofessional witness, familiar with the nature of the plaintiff’s work and having observed his performance of his duties after the accident, to testify that he appeared to be unable to perform certain of his tasks. Cf. United States v. Woltman, 61 App.D.C. 52, 57 F.2d 418, 420. And similarly, though the testimony by plaintiff that he would go back to work if he were able was unnecessary and of little probative value, it was within the discretion of the trial court to allow him to so state, in view of defendant’s contention that he had no such injury as he claimed and could have gone back to his brakeman’s job if he had wanted to work. As heretofore indicated, the court admitted testimony by plaintiff that a “slow-order” was received at Clinton, over objection by defendant that this was not the best evidence. To make reference to a document by its common designation, even though the designation may in some measure be a characterization of the contents, is elementarily not a violation of the best evidence rule. The term “slow order” here would seem to be in the same category as such designations as general warranty deed, notarial commission, discharge papers, etc. It is true that counsel for plaintiff carried the matter further and succeeded in getting the contents of the slow order into the record on another and leading question, “Do you know whether or not in leaving the town of Colo there was an order or direction to run slow for a mile and a half?” But the record shows that counsel for defendant made no objection to the question until after it was answered, and it does not indicate any reason for the tardiness. It is within the discretion of the trial court to allow testimony, which is not the best evidence, to stand, where opportunity to object has existed but is not exercised until after the testimony is given. In addition to this, the contents of the slow order were again brought out on the cross-examination of the engineer, wholly without any objection by the defendant. The contents of a written order regulating the operation of a railroad train, the violation of which is relied on as negligence, ordinarily are within the application of the best evidence rule (Schroble v. Lehigh Valley R. Co., 2 Cir., 62 F.2d 993, 996), but it cannot be said here that the best evidence rule has been breached. It is contended also that the court erred in granting leave to plaintiff, during the course of his case in chief, to amend his complaint to “allege in substance that defendant so negligently conducted its general business of railroading and was so negligent * * * that the train upon which the plaintiff was employed was caused to be wrecked.” The argument that this amendment was too indefinite requires no answer beyond what has already been said in regard to a res ipsa loquitur situation generally. And to the argument that, if the amendment was sufficiently definite, it nevertheless came too late, we need only observe that there was no such showing of surprise or other tmfairness as would prompt us to declare that there had been an abuse of discretion, and the fact that, after the leave to amend was granted, defendant apparently did not think that there was any reason for it to seek a continuance confirms our view. Reversal further is sought on the argument of plaintiff’s counsel to the jury. Defendant, however, did not make any objections during the course of the argument or take any exceptions at its close, but it waited until after the court instructed the jury before it made known that it desired to challenge the argument. A party is not entitled as a matter of right to seek a reversal for improper argument to the jury, where he fails to make objections during its course or to take exceptions promptly at its close. One of the reasons for the rule is to enable the trial court to deal with the matter while it is fresh and to permit it to make any formal or informal additions to its instructions, if it deems this necessary. The principles governing the review of improper arguments were fully stated in London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 344, as follows: “In the future, to secure from- this court, as a matter of right, a reversal of a judgment because of improper remarks of counsel in an argument made to a jury, the [record] must contain all arguments in full and must show, either that adequate objections * * * were taken during the argument complained of, or that such remarks were specifically excepted to at the close of the argument. While failure of a party to take proper exceptions will not deprive this court of its power to grant a new trial in the public interest, we think there is no reason why that power should be exercised in such a case except under the most unusual circumstances.” (Emphasis added.) We are not disposed to regard the situation here as one of such unusual circumstances as should prompt us to use our discretionary power to set aside the judgment in the public interest because of the argument made to the jury, but an observation or two ought perhaps to be added. A trial court ordinarily should squelch on its own initiative any such appeals to ciass prejudice in a jury argument as the following made by plaintiff’s counsel: “We find a man against whom prior to this time not a word could be said,—just an ordinary laboring maii. Are the laboring men of this country frauds? Are the laboring men of this country cheats? Does it follow, men and women, that every time a man is injured on a train by a'railroad that some strange metamorphosis takes place in that man’s mind and he becomes a fraud and a cheat ?” There are other statements in the argument which we think probably will want to be reread and considered by counsel before they are repeated on a retrial. We need not, however, discuss the argument further, for there is no reason for us to anticipate that the same things will be said again. And our previous decisions do not leave the bounds of proper argument in a federal court case unknown. See London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 338-344; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 74 F.2d 31, 36, 37; Id., 8 Cir., 84 F.2d 569, 573-576; Union Pac. R. Co. v. Field, 8 Cir., 137 F. 14. See also New York Central R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Minneapolis, St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243. Defendant’s final contention is that the judgment should be reversed for ex-cessiveness of the verdict. The verdict was for $16,458. A Circuit Court of Appeals will not review the verdict in a tort action for excessiveness or inadequacy of its amount. Wabash Railway Co. v. McDaniels, 107 U.S. 454, 456, 2 S.Ct. 932, 27 L.Ed. 605; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 77 L.Ed. 439; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 74 F.2d 31, 37. The judgment is reversed and the cause remanded for a new trial, because of the refusal to give defendant’s requested instruction on the theory of its defense. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. 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. PARKER, WARDEN, et al. v. LEVY No. 73-206. Argued February 20, 1974 Decided June 19, 1974 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, and Powell, JJ., joined. Blackmun, J., filed a concurring statement, in which Burger, C. J., joined, post, p. 762. Douglas, J., filed a dissenting opinion, post, p. 766. Stewart, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 773. Marshall, J., took no part in the consideration or decision of the case. Solicitor General Bork argued the cause for appellants. With him on the brief were Assistant Attorney General Petersen, Allan A. Tuttle, and Jerome M. Feit. Charles Morgan, Jr., argued the cause for appellee. With him on the brief were Norman Siegel, Laughlin McDonald, Morris Brown, Neil Bradley, Reber F. Boult, Jr., Anthony G. Amsterdam, Alan H. Levine, Burt Neuborne, Melvin L. Wulf, and Henry W. Sawyer III Briefs of amici curiae urging affirmance were filed by Marvin M. Karpatkm and Thomas M. Comerford for the Association of the Bar of the City of New York, and by Joseph H. Sharlitt and Neal E. Krucoff for Richard G. Augenblick. Mr. Justice Rehnquist delivered the opinion of the Court. Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. He had entered the Army under the so-called “Berry Plan,” under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 1967, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor. The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out. During the same period of time, appellee made several public statements to enlisted personnel at the post, of which the following is representative: “The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don’t see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.” Appellee’s military superiors originally contemplated non judicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U. S. C. § 815, but later determined that court-martial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant’s order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who “willfully disobeys a lawful command of his superior commissioned officer.” Statements to enlisted personnel were listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of “conduct unbecoming an officer and a gentleman,” while Art. 134 proscribes, inter alia, “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” The specification under Art. 134 alleged that appellee “did, at Fort Jackson, South Carolina,... with design to promote disloyalty and disaffection among the troops, publicly utter [certain] statements to divers enlisted personnel at divers times....” The specification under Art. 133 alleged that appellee did “while in the performance of his duties at the United States Army Hospital... wrongfully and dishonorably” make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision. Appellee was convicted by the court-martial, and his conviction was sustained on his appeals within the military. After he had exhausted this avenue of relief, he sought federal habeas corpus in the United States District Court for the Middle District of Pennsylvania, challenging his court-martial conviction on a number of grounds. The District Court, on the basis of the voluminous record of the military proceedings and the argument of counsel, denied relief. It held that the “various articles of the Uniform Code of Military Justice are not unconstitutional for vagueness,” citing several decisions of the United States Court of Military Appeals. The court rejected the balance of appellee’s claims without addressing them individually, noting that the military tribunals had given fair consideration to them and that the role of the federal courts in reviewing court-martial proceedings was a limited one. The Court of Appeals reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for vagueness. 478 F. 2d 772 (CA3 1973). The court found little difficulty in concluding that “as measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians,” the general articles “do not pass constitutional muster.” It relied on such cases as Grayned v. City of Rockford, 408 U. S. 104 (1972); Papachristou v. City of Jacksonville, 405 U. S. 156 (1972); Giaccio v. Pennsylvania, 382 U. S. 399 (1966); Coates v. City of Cincinnati, 402 U. S. 611 (1971), and Gelling v. Texas, 343 U. S. 960 (1952).. The Court of Appeals did not rule that appellee was punished for doing things he could not reasonably have known constituted conduct proscribed by Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated by the President by Executive Order. Nonetheless, relying chiefly on Gooding v. Wilson, 405 U. S. 518 (1972), the Court found the possibility that Arts. 133 and 134 would be applied to future conduct of others as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give appellee standing to challenge both articles on their face. While it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no “countervailing military-considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values.” Turning finally to appellee’s conviction under Art. 90, the Court held that the joint consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave rise to a “reasonable possibility” that appellee’s right to a fair trial was prejudiced, so that a new trial was required. Appellants appealed to this Court pursuant to 28 U. S. C. § 1252. We set the case for oral argument, and postponed consideration of the question of our jurisdiction to the hearing on the merits. 414 U. S. 973 (1973). I This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 17 (1955). In In re Grimley, 137 U. S. 147, 153 (1890), the Court observed: “An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier.” More recently we noted that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” Orloff v. Willoughby, 345 U. S. 83, 94 (1953), and that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of- discipline and duty....” Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion). We have also recognized that a military officer holds a particular position of responsibility and command in the Armed Forces: “The President’s commission... recites that'reposing special trust and confidence in the patriotism, valor, fidelity and abilities’ of the appointee he is named to the specified rank during the pleasure of the President.” Orloff v. Willoughby, supra, at 91. Just as military society has been a society apart from civilian society, so “[mjilitary law... is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Burns v. Wilson, supra, at 140. And to maintain the discipline essential to perform its mission effectively, the military has developed what “may not unfitly be called the customary military law” or “general usage of the military service.” Martin v. Mott, 12 Wheat. 19, 35 (1827). As the opinion in Martin v. Mott demonstrates, the Court has approved the enforcement of those military customs and usages by courts-martial from the early days of this Nation: “... Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. Upon any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them.” Id., at 35-36. An examination of the British antecedents of our military law shows that the military law of Britain had long contained the forebears of Arts. 133 and 134 in remarkably similar language. The Articles of the Earl of Essex (1642) provided that “[a] 11 other faults, disorders and offenses, not mentioned in these Articles, shall be punished according to the general customs and laws of war.” One of the British Articles of War of 1765 made punishable “all Disorders or Neglects... to the Prejudice of good Order and Military Discipline...” that were not mentioned in the other articles. Another of those articles provided: “Whatsoever Commissioned Officer shall be convicted before a General Court-martial, of behaving in a scandalous infamous Manner, such as is unbecoming the Character of an Officer and a Gentleman, shall be discharged from Our Service.” In 1775 the Continental Congress adopted this last article, along with 68 others for the governance of its army. The following year it was resolved by the Congress that “the committee on spies be directed to revise the rules and articles of war; this being a committee of five, consisting of John Adams, Thomas Jefferson, John Rutledge, James Wilson and R. R. Livingston... The article was included in the new set of articles prepared by the Committee, which Congress adopted on September 20, 1776. After being once more re-enacted without change in text in 1786, it was revised and expanded in 1806, omitting the terms “scandalous” and “infamous,” so as to read: “Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed [from] the service.” From 1806, it remained basically unchanged through numerous congressional re-enactments until it was enacted as Art. 133 of the Uniform Code of Military Justice in 1951. The British article punishing “all Disorders and Neglects...” was also adopted by the Continental Congress in 1775 and re-enacted in 1776. Except for a revision in 1916, which added the clause punishing “all conduct of a nature to bring discredit upon the military service,” substantially the same language was preserved throughout the various re-enactments of this article too, until in 1951 it was enacted as Art. 134 of the Uniform Code of Military Justice. Decisions of this Court during the last century have recognized that the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134. In Dynes v. Hoover, 20 How. 65 (1857), this Court upheld the Navy’s general article, which provided that “[a] 11 crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.” The Court reasoned: “[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been rec-ognised to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance.” Id., at 82. In Smith v. Whitney, 116 U. S. 167 (1886), this Court refused to issue a writ of prohibition against Smith’s court-martial trial on charges of “ [s] candalous conduct tending to the destruction of good morals” and “ [c] ulpable inefficiency in the performance of duty.” The Court again recognized the role of “the usages and customs of war” and “old practice in the army” in the interpretation of military law by military tribunals. Id., at 178-179. In United States v. Fletcher, 148 U. S. 84 (1893), the Court considered a court-martial conviction under what is now Art. 133, rejecting Captain Fletcher's claim that the court-martial could not properly have held that his refusal to pay a just debt was “conduct unbecoming an officer and a gentleman.” The Court of Claims decision which the Court affirmed in Fletcher stressed the military’s “higher code termed honor, which holds its society to stricter accountability” and with which those trained only in civilian law are unfamiliar. In Swaim v. United States, 165 U. S. 553 (1897), the Court affirmed another Court of Claims decision, this time refusing to disturb a court-martial conviction for conduct “to the prejudice of good order and military discipline” in violation of the Articles of War. The Court recognized the role of “unwritten law or usage” in giving meaning to the language of what is now Art. 134. In rejecting Swaim’s argument that the evidence failed to establish an offense under the article, the Court said: “[T]his is the very matter that falls within the province of courts-martial, and in respect to which their conclusions cannot be controlled or reviewed by the civil courts. As was said in Smith v. Whitney, 116 U. S. 178, of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law.' ” 165 U. S., at 562. The Court of Claims had observed that cases involving “conduct to the prejudice of good order and military discipline,” as opposed to conduct unbecoming an officer, “are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our innate sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties.” II The differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community. In civilian life there is no legal sanction — civil or criminal — for failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer. The Code likewise imposes other sanctions for conduct that in civilian life is not subject to criminal penalties: disrespect toward superior commissioned officers, Art. 89, 10 U. S. C. § 889; cruelty toward, or oppression or maltreatment of subordinates, Art. 93, 10 U. S. C. § 893; negligent damaging, destruction, or wrongful disposition of military property of the United States, Art. 108, 10 U. S. C. §908; improper hazarding of a vessel, Art. 110, 10 U. S. C. § 910; drunkenness on duty, Art. 112, 10 U. S. C. §912; and malingering, Art. 115, 10 U. S. C. § 915. But the other side of the coin is that the penalties provided in the Code vary from death and substantial penal confinement at one extreme to forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction at the other. Though all of the offenses described in the Code are punishable “as a court-martial may direct,” and the accused may demand a trial by court-martial, Art. 15 of the Code also provides for the imposition of nonjudicial “disciplinary punishments” for minor offenses without the intervention of a court-martial. 10 U. S. C. § 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law. In short, the Uniform Code of Military Justice regulates a far broader range of the conduct of military personnel than a typical state criminal code regulates of the conduct of civilians; but at the same time the enforcement of that Code in the area of minor offenses is often by sanctions which are more akin to administrative or civil sanctions than to civilian criminal ones. The availability of these lesser sanctions is not surprising in view of the different relationship of the Government to members of the military. It is not only that of lawgiver to citizen, but also that of employer to employee. Indeed, unlike the civilian situation, the Government is often employer, landlord, provisioner, and lawgiver rolled into one. That relationship also reflects the different purposes of the two communities. As we observed in In re Grimley, 137 U. S., at 153, the military “is the executive arm” whose “law is that of obedience.” While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community there is simply not the same autonomy as there is in the larger civilian community. The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors. Perhaps because of the broader sweep of the Uniform Code, the military makes an effort to advise its personnel of the contents of the Uniform Code, rather than depending on the ancient doctrine that everyone is presumed to know the law. Article 137 of the Uniform Code, 10 U. S. C. § 937, requires that the provisions of the Code be “carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter” and that they be “explained again after he has completed six months of active duty....” Thus the numerically largest component of the services, the enlisted personnel, who might be expected to be a good deal less familiar with the Uniform Code than commissioned officers, are required by its terms to receive instructions in its provisions. Article 137 further provides that a complete text of the Code and of the regulations prescribed by the President “shall be made available to any person on active duty, upon his request, for his personal examination.” With these very significant differences between military law and civilian law and between the military community and the civilian community in mind, we turn to appellee’s challenges to the constitutionality of Arts. 133 and 134. Ill Appellee urges that both Art. 133 and Art. 134 (the general article) are “void for vagueness” under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. We have recently said of the vagueness doctrine: “The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and discriminatory enforcement.’ Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U. S. 566, 572-573 (1974). Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope. The United States Court of Military Appeals has stated that Art. 134 must be judged “not in vacuo, but in the context in which the years have placed it,” United States v. Frantz, 2 U. S. C. M. A. 161, 163, 7 C. M. R. 37, 39 (1953). Article 134 does not make “every irregular, mischievous, or improper act a court-martial offense,” United States v. Sadinsky, 14 U. S. C. M. A. 563, 565, 34 C. M. R. 343, 345 (1964), but its reach is limited to conduct' that is “ ‘directly and palpably — as distinguished from indirectly and remotely — prejudicial to good order and discipline. ” Ibid.; United States v. Holiday, 4 U. S. C. M. A. 454, 456, 16 C. M. R. 28, 30 (1954). It applies only to calls for active opposition to the military policy of the United States, United States v. Priest, 21 U. S. C. M. A. 564, 45 C. M. R. 338 (1972), and does not reach all “ [disagreement with, or objection to, a policy of the Government.” United States v. Harvey, 19 U. S. C. M. A. 539, 544, 42 C. M. R. 141, 146 (1971). The Manual for Courts-Martial restates these limitations on the scope of Art. 134. It goes on to say that “ [c] ertain disloyal statements by military personnel” may be punishable under Art. 134. “Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government.” Extensive additional interpretative materials are contained in the portions of the Manual devoted to Art. 134, which describe more than sixty illustrative offenses. The Court of Military Appeals has likewise limited the scope of Art. 133. Quoting from W. Winthrop, Military Law and Precedents 711-712 (2d ed. 1920), that court has stated: “ ‘“... To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.” ’ ” United States v. Howe, 17 U. S. C. M. A. 165, 177-178, 37 C. M. R. 429,441-442 (1967). The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: It has narrowed the very broad reach of the literal language of the articles, and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles’ language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. Dynes v. Hoover, 20 How. 65 (1857). And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. It is within that range that appellee’s conduct squarely falls, as the Court of Appeals recognized: “Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, ‘praising the enemy, attacking the war aims of the United States, or denouncing our form of government.’ With the possible exception of the statement that ‘Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children/ it would appear that each statement for which [Levy] was court-martialed could fall within the example given in the Manual.” 478 F. 2d, at 794. The Court of Appeals went on to hold, however, that even though Levy’s own conduct was clearly prohibited, the void-for-vagueness doctrine conferred standing upon him to challenge the imprecision of the language of the articles as they might be applied to hypothetical situations outside the considerable area within which their applicability was similarly clear. We disagree with the Court of Appeals both in its approach to this question and in its resolution of it. This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of “void for vagueness.” Lanzetta v. New Jersey, 306 U. S. 451 (1939); Winters v. New York, 333 U. S. 507 (1948). In these cases, the criminal provision is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” Coates v. City of Cincinnati, 402 U. S. 611, 614 (1971). But the Court of Appeals found in this case, and we agree, that Arts. 133 and 134 are subject to no such sweeping condemnation. Levy had fair notice from the language of each article that the particular conduct which he engaged in was punishable. This is a case, then, of the type adverted to in Smith v. Goguen, in which the statutes “by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain.” 415 U. S., at 578. The result of the Court of Appeals’ conclusion that Levy had standing to challenge the vagueness of these articles as they might be hypothetically applied to the conduct of others, even though he was squarely within their prohibitions, may stem from a blending of the doctrine of vagueness with the doctrine of overbreadth, but we do not believe it is supported by prior decisions of this Court. We have noted in Smith v. Goguen, id., at 573, that more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression. For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter. But each of these differentiations relates to how strict a test of vagueness shall be applied in judging a particular criminal statute. None of them suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. Clearly, that standard is met here, for as the Court stated in United States v. National Dairy Corp., 372 U. S. 29, 32-33 (1963): “The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E. g., Jordan v. De George, 341 U. S. 223, 231 (1951), and United States v. Petrillo, 332 U. S. 1, 7 (1947). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E. g., United States v. Rumely, 345 U. S. 41, 47 (1953); Crowell v. Benson, 285 U. S. 22, 62 (1932); see Screws v. United States, 325 U. S. 91 (1945). “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U. S. 612, 617 (1954). In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. Robinson v. United States, 324 U. S. 282 (1945).” Since appellee could have had no reasonable doubt that his public statements urging Negro enlisted men not to go to Vietnam if ordered to do so were both “unbecoming an officer and a gentleman,” and “to the prejudice of good order and discipline in the armed forces,” in violation of the provisions of Arts. 133 and 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail. We likewise reject appellee’s contention that Arts. 133 and 134 are facially invalid because of their “over-breadth.” In Gooding v. Wilson, 405 U. S., at 520-521, the Court said: “It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when 'no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,’ Dombrowski v. Pfister, 380 U. S. 479, 491 (1965), the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity’....” While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U. S. C. M. A., at 570, 45 C. M. R., at 344: “In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. Brandenburg v. Ohio, [395 U. S. 444 (1969)]. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray, [20 U. S. C. M. A. 63, 42 C. M. R. 255 (1970)].” In Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973), we said that “[e]mbedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations 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_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. Richard O.J. MAYBERRY, Appellant, v. George PETSOCK, Superintendent. No. 85-3537. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) May 18, 1987. Decided June 15, 1987. Rehearing and Rehearing In Banc Denied July 9, 1987. Richard O.J. Mayberry, pro se . Robert E. Colville, Dist. Atty., Kenneth J. Benson, Asst. Dist. Atty., Office of the Dist. Atty., Pittsburgh, Pa., for appellee. Before SLOVITER, BECKER and GARTH, Circuit Judges. A brief for appellant was filed by Thomas J. Michael, Pittsburgh, Pa., court appointed counsel. Counsel’s unopposed motion to withdraw thereafter was granted. OPINION OF THE COURT SLOVITER, Circuit Judge. I. Facts Petitioner Richard O.J. Mayberry appeals from an order of the District Court for the Western District of Pennsylvania dismissing his petition for a writ of habeas corpus for failure to exhaust state remedies. An examination of the lengthy procedural history of this case is necessary to our disposition of this appeal. On December 9, 1966, following a tumultuous trial in state court in Allegheny County, Pennsylvania, petitioner Mayberry and two co-defendants, Dominick Codispoti and Herbert Langnes, were found guilty by a jury of prison breach and holding hostages in a penal institution, based on acts which occurred while they were Pennsylvania state prisoners. On the day of sentencing, December 12, 1966, Mayberry filed a motion for a new trial which alleged thirty-nine grounds of error. See App. at 158— 162. Although Pennsylvania rules of criminal procedure have been interpreted to require that post-verdict motions be decided before sentencing, Pa.R.Crim.P. 1123 (comment); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372, 373 (1975), the trial judge, Judge Fiok, proceeded to sentence Mayberry without ruling on his post-trial motion. Mayberry was sentenced to consecutive terms of imprisonment of fifteen to thirty years for hostage holding and five to ten years for prison breach. On the same day, Judge Fiok found Mayberry guilty of eleven counts of criminal contempt of court for his conduct during the trial. Mayberry was sentenced to consecutive terms of imprisonment of eleven to twenty-two years on the contempt charges. The contempt charges were the subject of numerous appeals and are not at issue in the current petition for a writ of habeas corpus. In addition to his new trial motion filed in the trial court, Mayberry filed a timely appeal on January 12, 1967 to the Pennsylvania Superior Court of his convictions and sentences for prison breach and hostage holding. The record indicates that following the filing of his appeal in January 1967, Mayberry filed seven petitions for continuances in his appeal pending before the Superior Court, the last one granted March 25, 1970, and continuing the appeal until November 1970. App. at 167. In each of the five petitions for continuance that May-berry included in his appendix, there is reference to the pending undecided new trial motion, and all but one petition requested that a continuance be granted in order to allow the new trial motion to be decided before the appeal was decided. App. at 89-112. The Commonwealth did not object to any of the continuances. On November 13, 1970, apparently after the period covered by the last petition for continuance, the Superior Court entered a judgment of non pros on the appeals. No reference to the petitions for continuance or to the pending new trial motion was made in the judgment of non pros. App. at 114-15. On December 7, 1970, Mayberry filed a petition with the Superior Court to remove the judgment of non pros. The petition alleged that by placing him in solitary confinement and denying him access to legal papers, the state prison authorities interfered with and obstructed his attempt to file a brief or a new petition for a continuance of the pending appeal. App. at 120-21. Mayberry’s petition also stated that his post trial motions had not yet been decided. App. at 119. By letter dated January 27, 1971, from Assistant District Attorney Carol Mary Los (now Judge Mansmann of this court), Mayberry was informed that the Commonwealth had no objection to the removal of the non pros judgment. App. at 80-81. The Superior Court took no action on Mayberry’s petition to remove the judgment of non pros for four years until, on March 12, 1975, it denied the petition without an opinion. App. at 115. The Commonwealth asserts that Mayberry’s post-trial motions were resolved by an order signed by Judge Fiok on January 27, 1975. The order pointed to by the Commonwealth is titled “Order of Court Nunc Pro Tunc”, states that an earlier Order entered on December 29,1967 “has become lost or misplaced”, and denies the “respective motions” of Mayberry and his co-defendants nunc pro tunc to December 29, 1967. App. at 30-31. Mayberry contends that the nunc pro tunc order was never docketed in the Pennsylvania courts and that he never received a copy of the order. Mayberry also avers in his habeas corpus petition that he filed a petition with the Pennsylvania trial court for post-conviction relief on October' 9, 1970. The purported petition alleges that Mayberry was prevented by prison officials from pursuing his appeal, that he was prevented from communicating with his attorney, and that he was being prevented by prison officials from proceeding with his new trial motion. App. at 169-74. The Commonwealth asserts that the post-conviction petition was never filed with the Pennsylvania courts. Mayberry filed a petition for habeas corpus on October 23, 1984 in the United States District Court for the Western District of Pennsylvania alleging five grounds for relief: denial of his due process rights caused by the delay of the trial court in failing to rule on his new trial motion and in failing to rule on his post-conviction petition; denial of his due process rights because the trial court’s failure to rule on the new trial motion and post-conviction petition obstructed his right to appeal; denial of due process by the trial court’s sentencing him prior to ruling on the new trial motion; denial of due process based on the thirty-nine grounds for error alleged in his post-trial motion filed in state court; and denial of due process by state officials’ obstruction of his right to appeal. App. at 9-10. Mayberry’s habeas petition acknowledges that the allegations of unconstitutional delay in ruling on his new trial motion and post-conviction petition and sentencing prior to ruling on the new trial motion claims have not previously been presented to the Pennsylvania courts. He alleges, however, that he has “no available remedy in the state courts.” App. at 9. The petition for habeas corpus was referred to a magistrate who recommended that the petition be dismissed for failure to exhaust state remedies. The magistrate stated, “there is no doubt that on January 29, 1975, the Court of Common Pleas entered an order in which it held that the order of December 29, 1967 had been lost or misplaced, and directed that the motion for a new trial be denied as of December 29, 1967.” App. at 48. The magistrate concluded that because Mayberry had not appealed that decision, he had failed to exhaust his state remedies. App. at 48-50. With respect to the post-conviction petition, the magistrate credited the Commonwealth’s assertion that no petition was ever filed, and concluded that “even if this were not the case, the fact that almost fifteen years has elapsed since Mayberry alleges he filed the petition, and the fact that the petitioner has not attempted to have the matter resolved, defies belief where an individual such as Mayberry who has extensive experience in the judicial system is the principal litigant.” App. at 50. The district court adopted the magistrate’s Report and Recommendation and dismissed May-berry’s petition. App. at 64. II. Exhaustion As a general rule, a state prisoner must exhaust state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Santana v. Fenton, 685 F.2d 71, 73 (3d Cir.1982), cert. denied, 459 U.S. 1115, 103 S.Ct. 750, 74 L.Ed.2d 968 (1983). The requirement is not a mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner’s federal rights. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). An exception, however, is made where the petitioner has no opportunity to obtain redress in the state court or where the state corrective process is so deficient as to render any effort to obtain relief futile. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam); see also 28 U.S.C. § 2254(b). Mayberry alleges that this exception applies to his petition. In finding that Mayberry failed to exhaust, the magistrate relied on the undisputed fact that Mayberry failed to appeal the nunc pro tunc order of January 29, 1975 denying his new trial motion. May-berry argues that he could not have appealed from the order denying his new trial motion because neither the order purportedly signed on December 29, 1967 nor the nunc pro tunc order of January 29, 1975 was in fact filed. Mayberry points to the letter from then Assistant District Attorney Carol Mary Los (now Judge Mansmann) dated January 27, 1971, stating that she had been informed by the Clerk of Court’s office that it could not find any record of the disposition of Mayberry’s post-trial motions. App. at 80. Mayberry argues that this letter proves that no order was ever entered in 1967, and that this casts doubt on the 1975 nunc pro tunc order generally. Mayberry argues that the nunc pro tunc order was never docketed in the state courts and that he never received a copy of the order and thus, that he could not have appealed from it. We note that the district court made no determination that Mayberry’s motion for a new trial was denied on December 29, 1967, as the state court’s order states and as the Commonwealth argued in the district court. The Commonwealth produced no contemporaneous evidence showing entry of such an order. It does not appear on the trial court docket. App. at 116a. Nonetheless, it is irrelevant whether the new trial motion was denied in 1967 if the nunc pro tunc order was filed in 1975 and Mayberry failed to perfect his appeal therefrom. We agree with the Commonwealth that the “Order of Court Nunc Pro Tunc” which is reproduced in the appendix and which is stamped “Received January 30, 1975” by the Chief Minute Clerk Criminal Division in the Court of Common Pleas of Allegheny County is indisputable evidence of the filing of such an order. App. at 31. Moreover the notation “Copies sent” on the order at least places upon Mayberry the burden of proving that a copy was not sent to him. Mayberry argues that a statement in a footnote of this court’s opinion in Codispoti v. Howard, 589 F.2d at 138 n. 5, suggests otherwise. In that case, we reviewed the procedural history relating to Mayberry’s co-defendant, Codispoti, and concluded that Codispoti’s new trial motion had not been disposed of by the time of our decision in that case. We referred to a letter to Codispoti from the Allegheny County Clerk of Courts dated August 6, 1975 (several months after the nunc pro tunc order), which stated that no disposition had yet been made of Codispoti’s new trial motion. Id. at 138 n. 5. However, there is no suggestion in Codispoti that the Commonwealth argued there, as it does here, that Codispoti’s new trial motion was disposed of by the nunc pro tunc order. The statement in Codispoti, standing alone, is insufficient to overcome the “presumption of regularity” accorded state court proceedings. See Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed.2d 1461 (1938); United States ex rel. McCloud v. Rundle, 402 F.2d 853, 857 (3d Cir.1968), cert. denied, 398 U.S. 929, 90 S.Ct. 1822, 26 L.Ed.2d 92 (1970). See also Ford v. Strickland, 696 F.2d 804, 811 (11th Cir.), cert. denied, 464 U.S. 865, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983). Accordingly, Mayberry’s failure to appeal from the nunc pro tunc order denying his new trial motion and his failure to appeal from the Superior Court’s denial of his petition to remove the judgment of non pros in his direct appeal would constitute a failure to exhaust state remedies which would bar habeas relief unless Mayberry can show that he was excused from exhaustion. III. Allegations of State Obstruction Mayberry sought to make such a showing by claiming in the district court that he was obstructed by state officials from pursuing his appeal. App. at 9. The Supreme Court has suggested, without elaboration, that failure to exhaust state remedies will not bar federal habeas corpus review where state officials have interfered with a habeas petitioner’s utilization of state remedies. In Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), the Court so stated first in discussing the petitioners’ failure to appeal (“Of course, federal habeas corpus is allowed where time has expired without appeal when the prisoner is detained without opportunity to appeal because of lack of counsel, incapacity, or some interference by officials. ” Id. at 485-86, 73 S.Ct. at 422 (emphasis added)), and then in discussing the petitioners’ failure to use the state’s remedy for collateral relief (“A failure to use a state’s available remedy, in the absence of some interference or incapacity, such as is referred to [in cases involving denial of counsel], bars federal habeas corpus.” Id. at 487, 73 S.Ct. at 422 (emphasis added)). The Court also suggested last term that “some interference by officials” which “made compliance impractical” would constitute cause, under the cause and prejudice standard to excuse procedural default. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2646, 91 L.Ed.2d 397 (1986) (citing Brown v. Allen, 344 U.S. at 486, 73 S.Ct. at 422). Although several circuits have acknowledged that such “interference” by officials would be a basis for excusing exhaustion of state remedies, see Litchfield v. Tinsley, 281 F.2d 486, 488 (10th Cir.1960), State v. Gladden, 240 F.2d 910, 911-12 (9th Cir. 1957), we have found only one case where a federal court actually proceeded to consider the merits of a state prisoner’s unexhausted claim after finding that it was “the policy of the State administrative authorities to refuse prisoners the right to send petitions to any court.” United States ex rel. Bongiorno v. Ragen, 54 F.Supp. 973, 976 (N.D.Ill.1944), aff'd, 146 F.2d 349 (7th Cir.), cert. denied, 325 U.S. 865, 65 S.Ct. 1194, 89 L.Ed. 1985 (1945). We agree that if a prisoner could establish that the activities of the state authorities made the prisoner’s resort to the state procedures in effect unavailable, exhaustion would be excused. Mayberry’s petition for a writ of habeas corpus asserts that he did not appeal from the denial of his petition to lift the non pros judgment because “Prison officials obstructed and prevented me from filing appeal briefs and held me incommunicado, and stole my records and files while transferring me from one solitary confinement cell to another all over Pennsylvania.” App. at 9. In the post-conviction petition, which the Commonwealth contends was never filed in state court, Mayberry alleges that “The authorities at the state prison at Huntingdon obstruct me in my right to appeal my convictions by holding me incommunicado from my attorney, withholding my personal legal papers and correspondence.” App. at 171. Mayberry’s petition for habeas corpus alleges as a ground for relief “denial of my right to due process of law by state officials obstruction of my right to appeal as set forth in my post-conviction petition.” App. at 10. Mayberry argued in his Memorandum of Law filed in support of his petition filed in the district court that his direct appeal was obstructed “by the prison authorities holding [me] incommunicado and denying [me my] right of access to the courts.” App. at 180. Similarly, Mayberry alleged in his motion for discovery, not ruled on by the district court, that “the prison authorities at the Western Penitentiary, the State Prison at Huntingdon, the State Prison at Dallas, ... have obstructed petitioner’s right of appeal.” App. at 193. In response to the Commonwealth’s motion to dismiss May-berry’s petition as a delayed petition under Rule 9(a) of the Rules Governing Habeas Corpus cases, Mayberry pointed to “the action of the prison authorities at Western Penitentiary and in the Bureau of Correction of Pa., in confiscating my legal papers and law books, holding me incommunicado, denying me access to the courts, transferring me from one solitary confinement cell to another in prisons all over Pennsylvania, and stealing my records and files.” App. at 38. IV. Sufficiency of Allegations We will assume arguendo that if Mayberry could establish the facts alleged, this would excuse exhaustion. We must decide whether these allegations, many made under penalty of perjury, entitled Mayberry to a hearing, or at least to the discovery he sought in the district court. As a general rule in dealing with the merits of a petition for habeas corpus, where there are material facts in dispute which if proven would entitle a petitioner to relief and the petitioner has not been afforded a full and fair evidentiary hearing in state court, either at the time of trial or in a collateral proceeding, a federal habeas court must hold an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963); Bibby v. Tard, 741 F.2d 26, 30 (3d Cir. 1984). However, “[t]his is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing.” Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 1632, 52 L.Ed.2d 136 (1977). Just as bald assertions and conclusory allegations do not afford a sufficient ground for an evidentiary hearing, see Wacht v. Cardwell, 604 F.2d 1245, 1246 n. 2 (9th Cir. 1979), neither do they provide a basis for imposing upon the state the burden of responding in discovery to every habeas petitioner who chooses to seek such discovery. Under Rule 6(a) of the Rules Governing Habeas Corpus Cases Under § 2254 the district court has discretion to decide the extent to which discovery is appropriate. The Advisory Committee Note to Rule 6 makes clear that prior court approval is required to prevent abuse. Moreover, Rule 2(c) of the Rules Governing Habeas Corpus Cases expressly provides in part that the petitioner “shall set forth in summary form the facts supporting each of the grounds” specified in the petition, (emphasis added). Thus, notice pleading is not countenanced in habeas petitions. See Blackledge, 431 U.S. at 75 & n. 7, 97 S.Ct. at 1629 & n. 7 (quoting Advisory Committee Note to Rule 4). Unless the petition itself passes scrutiny, there would be no basis to require the state to respond to discovery requests. See Rule 4 of the Rules Governing Habeas Corpus Cases (“If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal”). These rules and the judicial interpretation thereof have developed in the context of determinations made on the merits of a habeas petition rather than on whether non-exhaustion can be excused. We see no reason why allegations on the latter issue should be governed by any lesser standard than allegations on the merits. Just as “[h]abeas corpus is not a general form of relief for those who seek to explore their case in search of its existence,” Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir.1970), so also discovery and an evidentiary hearing should not be available to a habeas petitioner who claims relief from the exhaustion rule unless the petitioner sets forth facts with sufficient specificity that the district court may be able, by examination of the allegations and the response, if any, to determine if further proceedings are appropriate. See generally Blackledge v. Allison, 431 U.S. at 81-82 & n. 25, 97 S.Ct. at 1632-33 & n. 25 (citing Moorhead v. United States, 456 F.2d 992, 996 (3d Cir.1972)). In this case, the record indicates that the Commonwealth did not respond in the district court to Mayberry’s allegation in the petition that he was obstructed from pursuing his appeal. Moreover, the district court did not address Mayberry’s ostensible excuse for failure to exhaust and hence it never considered whether Mayberry’s allegations of obstruction as an excuse for non-exhaustion were sufficiently specific to warrant discovery and/or an evidentiary hearing. We hold that this was error. While a district court may ultimately decide that a petitioner’s allegations of obstruction are not sufficient to create an issue of fact of obstruction as an excuse for failure to exhaust, the court should not ignore such allegations altogether. Although we could remand for consideration of the allegations of obstruction, since the record before us contains the petition and supporting papers filed in the district court, it will be more efficient if we review them to determine their sufficiency. In this connection, we note in passing that the Commonwealth which answered Mayberry’s attorney’s brief chose not to respond in this court to Mayberry’s pro se brief, filed after his attorney withdrew, in which the allegations of obstruction are made. Thus, this record contains no response by the Commonwealth either in the district court or here to Mayberry’s allegations of obstruction by state officials. Our decision to address the issue does not signify approval of the Commonwealth’s failure to provide us with assistance. In Mayberry’s habeas petition, his allegations of state obstruction are vague and general. For example, although he contends that the state officials withheld his legal papers, he does not state who withheld such papers, when and where they were withheld, whether those papers consisted of putative appeal papers, or whether they were incoming papers to which he was not given access. Similarly he contends that state officials refused to allow him to prepare or file appeal briefs. Again he states nothing with respect to the identity of the person or persons, and more particularly when this conduct took place. The timing is of particular relevance. All of Mayberry’s exhibits, such as the affidavits of other prisoners, are dated in 1970. Since these were years before the January 29, 1975 nunc pro tunc order, even if they could be viewed as providing some support for his allegations of obstruction, an issue we do not reach, they provide no support for any allegations of obstruction from the dates in 1975 when Mayberry would have been required to appeal from the nunc pro tunc order and from the Superior Court’s order refusing to lift the judgment of non pros in his direct appeal. Mayberry’s allegations that he has been moved in response to the filing of the habeas petition are similarly irrelevant to the issue of his failure to exhaust by appealing from the nunc pro tunc order entered January 29, 1975. In short, neither Mayberry’s allegations of state obstruction nor the material in the appendix makes a sufficient showing on the exhaustion issue to warrant a court to direct the state to respond to Mayberry’s request for discovery or to embark on an evidentiary hearing. Therefore, although the district court failed to consider the issue, we hold that the district court did not err in its ultimate disposition dismissing Mayberry’s petition for failure to exhaust. V. Conclusion In summary, Mayberry failed to exhaust state remedies in that he failed to appeal from the nunc pro tunc order of January 29, 1975 denying his new trial motion or from the Superior Court’s denial of his petition to remove the judgment of non pros in his direct appeal. We hold that a habeas petitioner may be excused from exhausting state remedies by showing that obstruction by state officials prevented pursuit of those remedies. We also hold, however, that the allegations of exhaustion must be at least as specific with respect to the facts allegedly excusing exhaustion as is required for allegations alleging constitutional deprivation as the basis for the habeas petition. Mayberry’s allegations of obstruction do not rise to the necessary level and for the reasons set forth above, we will affirm the district court’s order of dismissal. . We have previously described the outrageous conduct of Mayberry and his co-defendants during the course of the trial. See Codispoti v. Howard, 589 F.2d 135, 137-38 (3d Cir.1978). . The magistrate mentioned, but does not appear to have relied on, Mayberry’s failure to appeal to the Pennsylvania Supreme Court from the Superior Court’s denial of his motion to lift the non pros. Had Mayberry appealed or filed a petition for allocatur to the Pennsylvania Supreme Court alleging the same constitutional violations that he alleged in his petition in the Superior Court, he would have exhausted his state remedies. See Chaussard v. Fulcomer, 816 F.2d 925, 928 (3d Cir. 1987). . Although not necessarily bearing on Mayberry’s attempts to pursue his appeals after the denial of his new trial motion and petition to remove the judgment of non pros in 1975, we note that Mayberry repeatedly asserted in his petitions for continuance of his appeal in the Superior Court and his petition to remove the judgment of non pros that he was being obstructed by state officials from pursuing his appeals. App. at 108, 112-13, 120. . The Commonwealth’s answer to Mayberry’s petition states that Mayberry alleged only four grounds as bases for relief. App. at 17-18. It does not mention the fifth ground alleged by Mayberry, "Denial of my right to due process of law by state officials obstruction of my right to appeal as set forth in my postconviction petition." App. at 10. Nor does the Commonwealth’s answer respond to Mayberry’s explanation for his failure to appeal the adverse action on his petition to remove the judgment of non pros that, "prison officials obstructed and prevented me from filing appeal briefs and held me incommunicado and stole my records and files while transferring me from one solitary confinement cell to another all over Pennsylvania.” App. at 9. . Some of the material included in Mayberry’a appendix, which was allegedly attached to various petitions, is of questionable legitimacy. For example, he included as Exhibit 1 to his petition to the Superior Court to remove the judgment of non pros, "a photocopy of a letter dated November 10, 1970 written by the Honorable Frederick B. Smillie to the Secretary of Welfare of Pennsylvania.” See App. at 121. We note, however, that this alleged "photocopy” does not contain any letterhead or signature. See App. at 125A. Even if we were to assume that the letter was legitimate, its date makes it irrelevant for consideration for the purpose of our inquiry, i.e. failure to exhaust after January 29, 1975. . We need not reach the dispute between May-berry and the Commonwealth over whether a post-conviction petition for relief was filed. The magistrate’s report states, "despite the petitioner’s allegations to the contrary, the records of the Clerk of the Common Pleas Court, do not contain any showing that a post-conviction [petition] was ever filed by the petitioner,” App. at 50. Even if Mayberry had filed a post-conviction petition in 1970, as he alleges, the state court's failure to rule on that could not excuse Mayberry from falling to appeal from the 1975 nunc pro tunc order. Because Mayberry’s allegations with respect to state obstruction vis-a-vis his alleged post-conviction petition are no more specific than the similar allegations regarding his failure to appeal the other orders, his filing of such a petition vel non would not affect the disposition of this appeal. We have considered and rejected, either on the merits or as not relevant, all the remaining arguments raised in Mayberry’s brief. We note however that Mayberry’s contention that the district court erred in failing to permit him to expand the record is moot, since we have reviewed all of the items included in his pro se appendix in the course of our de novo consideration. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_state	18	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". William C. HARRIS, Petitioner-Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, et al., Respondent-Appellee. No. 15889. United States Court of Appeals Sixth Circuit. Feb. 23, 1965. William C. Harris, in pro. per. Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, Ky., for appellee. Before MILLER, CECIL and PHILLIPS, Circuit Judges. PER CURIAM. This cause is before the Court on appeal from an order of the United States District Court for the Western District of Kentucky, denying a writ of habeas corpus to William C. Harris, petitioner-appellant, herein. The petitioner was tried before a jury and convicted on an indictment charging armed robbery at the January and February 1956 term of the Marion Circuit Court, Lebanon, Marion County, Kentucky. He was sentenced for life to the Kentucky State Penitentiary, at Eddyville, where he is now confined. The petitioner contends that the court was without jurisdiction to try his case because the trial judge appointed the Lebanon, Kentucky, City Attorney to represent him. His reasoning is that his counsel by virtue of his position had conflicting interests, was hostile to his cause and could not have been effective in assistance. This alleged conflict of interests is the sole basis of petitioner’s claim that his constitutional rights under the Sixth and Fourteenth Amendments of the Constitution of the United States have been violated. In support of this claim, he cites Berry v. Gray, D.C., 155 F.Supp. 494. The facts of this case are readily distinguishable from the petitioner’s situation. There the attorney had been elected county attorney and it was his duty to assist the Commonwealth’s Attorney to prosecute criminal offenses. He had issued the warrant for Berry’s arrest and conducted the examination of witnesses before the Grand Jury. A petition for a writ of habeas corpus to the Lyon Circuit Court of Lyon County was denied on May 8, 1963. On June 21, 1963, the Kentucky Court of Appeals affirmed the decision of the Lyon Circuit Court. The court said in its opinion: “A city attorney is not charged with any of the duties before a grand jury which are imposed by law upon the county attorney, and is in no sense disqualified ex officio to defend an accused at a trial in the circuit court.” The Supreme Court of the United States denied certiorari on January 6, 1964. 375 U.S. 976, 84 S.Ct. 493, 11 L.Ed.2d 421. There are no facts alleged in the petition which would tend to show that counsel was ineffective or that he did not adequately and impartially represent the petitioner. See O’Malley v. United States, 6 Cir., 285 F.2d 733, and Scott v. United States, 6 Cir., 334 F.2d 72. Lebanon, Kentucky, is a city of the fourth class. Section 69.560 of Kentucky Revised Statutes provides that among the duties of a city attorney of such a city, “He shall prosecute all pleas of the Commonwealth and all warrants or proceedings instituted for violation of the ordinances or municipal regulations of the city in the police court, * * There is no claim that petitioner’s case ever came in any way within the scope of the city attorney’s duties in the police court. No cases have been cited to us in support of the claim that the city attorney was disqualified ex officio to defend the petitioner in the circuit court. We agree with the Kentucky Court of Appeals and conclude that the city attorney was not per se disqualified to represent the petitioner by reason of his office. Specifically, the only neglect of duty charged to counsel is that he failed to introduce witnesses and did not advise petitioner of the process for obtaining out of state witnesses. We said in O’Malley v. United States, supra, “In the opinion of trial counsel it may be advantageous not to cross-examine a certain witness, or not to use a witness who, although helpful to the defendant in certain respects, could be made a harmful witness on cross-examination. The testimony of prospective witnesses relied upon by a defendant may prove to be overvalued by the defendant and ineffective when fully developed and analyzed by defense counsel in his pretrial preparation.” 285 F.2d at 734. The witnesses to whom the petitioner refei’s are not named and there are no allegations of facts about which they would testify, nor in what manner they would have been pertinent to petitioner’s case. “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O’Malley v. United States, 6 Cir., 285 F.2d 733, 735, and cases cited. We find no error on the part of trial judge in dismissing the petition and the judgment of the District Court is therefore 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_respond1_1_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "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". Stanley J. SOCHANSKI, Appellant in No. 82-1036, v. SEARS, ROEBUCK AND COMPANY, Appellee and Cross-Appellant in No. 82-1037. and The GOODYEAR TIRE AND RUBBER CO. v. John F. SOLOMON, Jr., Palmer Tire Company, Geneva Metal Wheels Co. Nos. 82-1036, 82-1037. United States Court of Appeals, Third Circuit. Argued Aug. 3, 1982. Decided Sept. 21, 1982. August J. Lacko (argued), Philadelphia, Pa., for appellant in No. 82-1036 and crossappellee in No. 82-1037. John J. O’Brien, Jr. (argued), Philadelphia, Pa., for appellee in No. 82 — 1036 and cross-appellant in No. 82-1037. Before ALDISERT and WEIS, Circuit Judges and RE, Chief Judge. Honorable Edward D. Re, Chief Judge of the United States Court of International Trade, sitting by designation. OPINION OF THE COURT WEIS, Circuit Judge. In this products liability case, we must determine whether a pro rata release naming the manufacturer of a defective tire also discharges the retailer that sold the garden cart on which the tire was mounted. We conclude that, as to the tire manufacturer, the retailer is only secondarily liable. Therefore, unless another non-released primary tortfeasor is implicated, judgment should be entered for the retailer. The record, however, is unclear whether the wheel manufacturer also furnished a defective product and we remand for a determination of that factual issue. Plaintiff Stanley Sochanski was severely injured when a pneumatic tire exploded while he was repairing it. He brought suit under section 402A of the Restatement (Second) of Torts against Sears, Roebuck & Co., the vendor of the assembled cart, and Goodyear Tire and Rubber Co., the manufacturer of the tire. Sears, in turn, filed a third-party complaint against Geneva Metal Wheels Company, the alleged manufacturer of the wheel on which the tire was mounted. Jurisdiction is based on diversity of citizenship and the substantive law of Pennsylvania governs. In the liability phase of a bifurcated trial the jury found, in answers to interrogatories, that the tire was defective and unreasonably dangerous when it left Goodyear’s hands, and the defect was the proximate cause of the accident. Similar findings were made with respect to the “wheel unit,” which was defined as the Goodyear tire mounted on the cart wheel. Before the interrogatories were submitted to the jury, Sears moved to withdraw its third-party complaint against Geneva. Although the trial court did not enter an order on the motion, Geneva was not mentioned in the charge to the jury or in the special interrogatories. In addition, we find no record of any summation being delivered on behalf of Geneva. Nevertheless, after the jury’s verdict, the court deputy clerk made the following entry on the court minutes: “JURY VERDICT ON ISSUE OF LIABILITY: Favor of plff. & against defts, Sears, Roebuck & Co. and the Goodyear Tire & Rubber Co. & 3rd-pty deft. Geneva Wheel Co. Trial resumed on the issue of Damages.” No order of the district judge in conformance with this entry is in the record. After the trial on damages, the jury awarded the plaintiff $395,000 and judgment was entered in that amount against Sears and Goodyear. On post-trial motions, the district court granted judgment n.o.v. in favor of the two defendants on the ground that the plaintiff had failed to negate reasonable secondary causes for the tire’s explosion. 477 F.Supp. 316. Plaintiff then appealed to this court but, before argument, executed a pro rata release in favor of Goodyear and Geneva for a consideration of $100,000. The appeal against Goodyear was then withdrawn. This court, concluding that the plaintiff had met his burden of proof, reversed and directed the jury’s verdict to be reinstated. The court observed that Goodyear had reached a settlement with the plaintiff but stated: “We express no opinion about the effect of the settlement on Sears because neither Sears, Goodyear nor Sochanski has presented the issue to us.” 621 F.2d at 69 n. 1. On remand, the district court reinstated the verdict in favor of plaintiff and against Sears and Goodyear. Sears then moved for judgment n.o.v. contending that it was only secondarily liable and was discharged from liability by the release given to Goodyear. The district court rejected this argument, reasoning that because the case was tried under a “malfunction” rather than a specific defect theory, no infirmity was shown and, therefore, primary liability could not be assigned to Goodyear alone. 504 F.Supp. 182. Consequently, the court ruled that Sears was not secondarily but primarily liable with Goodyear as a joint tortfeasor. In a subsequent opinion determining the appropriate amount of a supersedeas bond, the district court stated that the “jury returned a verdict finding Sears, Goodyear and Geneva liable.” Sochanski v. Sears, Roebuck & Co., 504 F.Supp. 187, 188 (E.D.Pa. 1980). Accordingly, the court found all three defendants jointly liable and held Sears accountable for one-third of the total verdict. Goodyear and Geneva were absolved because the $100,000 settlement was made on behalf of both companies. On appeal, the plaintiff contends that because he withdrew his appeal against Goodyear in the first appearance before this court, the judgment n.o.v. in its favor in the district court remained in effect. According to the plaintiff, that judgment established that he had failed to prove a case against Goodyear and, therefore, its payment of the agreed settlement was that of a mere volunteer. See Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639, 642 (3d Cir. 1981). It follows, says the plaintiff, that Sears is now liable for the full amount of the judgment. We reject this contention. After this court had ordered that the jury’s verdict be reinstated, the district court entered judgment on the verdict in favor of the plaintiff and against both Sears and Goodyear. Neither plaintiff nor Goodyear took any steps in the district court or in this court to challenge that action. We question whether the plaintiff would have been successful in any such attempt. This court decided that the district court had erred in concluding that the plaintiff had not negated abnormal use and reasonable secondary causes. That determination applied equally to Sears and Goodyear. The plaintiff did prove a case against Goodyear and, were it not for the erroneous determination of the district court, the verdict against Goodyear would not have been disturbed. A court of appeals has the power to reverse a judgment of the district court even in favor of parties who do not participate in the appeal. In Re Barnett, 124 F.2d 1005 (2d Cir. 1942); see also Kicklighter v. Nails By Jannee, Inc., 616 F.2d 734 (5th Cir. 1980) (appeal by third-party defendant held to constitute appeal by defendant where case was reversed for error in plaintiff’s action against defendant). As the court said in Hysell v. Iowa Public Service Co., 559 F.2d 468, 476 (8th Cir. 1977), “[tjhis Court acquired jurisdiction to reverse or modify the entire judgment, even as it applied to non-appealing parties.... [Rjules requiring separate appeals by other parties are rules of practice, which may be waived in the interest of justice where the circumstances so require.” (citations omitted). See also Arnold's Hofbrau, Inc. v. George Hyman Construction Co., 480 F.2d 1145 (D.C. Cir. 1973); 15 C. Wright & A. Miller, Federal Practice and Procedure § 3904 (1966). Although the reversal of a judgment favoring a non-appealing party is not as frequent as the circumstance in which the non-appealing party benefits, it nevertheless may be required in the interest of justice. In the case at hand, the party affected did not waive a right to appeal. Having a judgment in its favor, Goodyear could not have taken an appeal. Moreover, it has not been harmed by the reversal of the judgment as a whole and has not complained about the record as it now stands. Goodyear is protected from further liability on the judgment by the release. It is unlikely that it will be required to incur any further litigation expense by participation in further proceedings in the district court. However, even if Goodyear were required to take part in future proceedings, that would not constitute a reason for restricting the scope of the judgment. Under Pennsylvania law, a person may be required to remain a party to a lawsuit for the purpose of determining joint or sole liability, even though the individual has received a joint tortfeasor release. Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d at 644; Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956). From that standpoint, therefore, Goodyear is in the same position as it would have been had it secured a pro rata release before suit was filed. On the other hand, if the judgment were not reinstated as to both defendants, the plaintiff’s and Sears’ respective rights would be uncertain because they are dependent upon an adjudication of Goodyear’s liability. To adopt plaintiff’s position would require us to either direct that the allocation of responsibility between Sears and Goodyear to be determined in another fact finding procedure or hold that Sears is precluded from contesting its liability as a result of the pre-argument maneuvering by the plaintiff in the first appeal. Neither course is necessary or satisfactory. The plaintiff may not destroy Sears’ rights arising from an adjudication of Goodyear’s liability by choosing to appeal only the judgment in favor of Sears. When the potential liability of one defendant is dependent on an adjudication of another defendant’s liability and an error in the district court applies equally to both defendants, the court has the power to reverse as to both defendants. In these circumstances, it would be unjust to do otherwise; the plaintiff cannot insulate the error as to one defendant by withdrawing his appeal. In sum, we conclude that this court properly could and did reverse the judgment in favor of both Sears and Goodyear on the first appeal. We must next clarify the “malfunction theory,” a matter misunderstood by counsel in this case. Under Pennsylvania law, the application of a malfunction theory provides a means of proving a defect, but does not alter the basic requirements of section 402A of the Restatement (Second) of Torts. See Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 329, 319 A.2d 914, 920 (1974); Mac Dougall v. Ford Motor Co., 214 Pa.Super. 384, 257 A.2d 676, 678-80 (1969). Evidence of a malfunction, then, is not a substitute for the need to establish that the product was defective. A malfunction is evidence that a defect existed and eliminates only the need to identify a specific failure. “[Malfunction may itself, in the absence of abnormal use and reasonable secondary causes, be sufficient evidence of a defect to make the existence of a defect a jury question.” Knight v. Otis Elevator Co., 596 F.2d 84, 89 (3d Cir. 1979). (emphasis supplied.) Thus, even when a case is tried under a malfunction theory, recovery rests on a finding that a defect did exist. When this ease was before us the first time, we reinstated the jury verdict because the plaintiff, through evidence of a malfunction, had established that there was a defect. The flaw was not a generalized one to the cart as a whole, but, as the jury’s answers to the interrogatories demonstrate, was confined to the tire and arguably to the “wheel unit.” There was no evidence that Sears in any way modified the tire before it sold the cart. Goodyear, because it manufactured the defective tire, is primarily liable. Sears acted only as a conduit between Goodyear and the purchaser of the cart and for that reason is only secondarily liable. The malfunction theory and the circumstances of this case do not alter the basic doctrine of primary-secondary liability explained in Burbage v. Boiler Engineering & Supply Co., 433 Pa. 319, 249 A.2d 563 (1969); see also Tromza v. Tecumsch Products Co., 378 F.2d 601 (3d Cir. 1967), (where party’s liability arose only because of its failure to discover or remedy a defect created by one primarily liable, its liability is secondary); Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368 (1951). Consequently, Sears’ liability for any misfeasance on Goodyear’s part is discharged by the release in favor of Goodyear. Thus far, the relationship between Sears and Goodyear is clearly established. The interrogatories directed to the “wheel unit,” however, reveal gaps and inconsistencies in the record which we cannot resolve. The interrogatories are patently ambiguous. Once the jury found that the tire was defective, it could logically conclude that the tire’s attachment to the wheel made the “wheel unit” defective, even though the wheel itself was in perfect condition. Or, the jury may have concluded that the wheel and the tire were each independently flawed. Either interpretation is reasonable and consistent with the court’s charge to the jury. If the tire alone was defective, then Goodyear is the sole primary tortfeasor. But, if the wheel itself was defective, then its manufacturer would also be a primary tortfeasor, jointly liable with Goodyear, and Sears would be secondarily liable for both manufacturers. There is nothing in the record to guide us in determining what the jury intended by its answers and we are not permitted to speculate. At this point, whether Geneva had any role in the construction of the garden cart becomes significant. If Geneva was the manufacturer of the wheel, then the release naming it would determine the outcome here. Once again, however, the record is inadequate. Geneva was one of several suppliers of wheels for the assemblers of the garden carts. There was testimony from a Geneva employee that the unit involved in this case was not manufactured by his company. One of plaintiff’s witnesses could not identify which supplier had provided the wheel involved in this case, but did testify that the Geneva wheels were always equipped with Goodyear tires, while those supplied by other wheel manufacturers came with tires made by other companies. Thus, there was a conflict in the evidence as to the identity of the wheel manufacturer, an issue never submitted to the jury. There is a serious inadequacy in the record as it stands because there has been no adjudication of Geneva’s liability. The Clerk’s minute entry in the district court indicating otherwise is clearly mistaken. The jury did not bring in a general verdict on liability, but only answered interrogatories that did not address the question of Geneva’s role, if any, in the incident. Thus, two critical factual issues have not been resolved. First, whether the wheel itself was defective, and, if so, whether Geneva was the manufacturer. Depending on the answers to these questions, the pro rata release would require one of the following rulings: 1. If the wheel is not defective within the meaning of section 402A, then Goodyear is the sole primary tortfeasor and Sears is only secondarily liable. In that event, judgment should be entered in favor of Sears since its responsibility is discharged by the pro rata release running in favor of Goodyear. 2. If the wheel is found to be defective and Geneva was the manufacturer, then again judgment must be entered in favor of Sears since the release in favor of both primary tortfeasors, Goodyear and Geneva, would also completely satisfy Sears’ secondary liability. 3. If the wheel is defective and Geneva was not the manufacturer, then Sears is liable for one-half of the verdict of $395,-000. This result follows because in that scenario there are two primary tortfeasors, Goodyear and the unknown wheel manufacturer. Sears’ secondary responsibility for Goodyear’s liability has been discharged by the release. Sears’ secondary liability for the unknown wheel manufacturer’s dereliction, however, is not extinguished by the release and, therefore, remains available to satisfy half of the plaintiff’s claim. In sum, the record, as it stands, establishes that Goodyear’s liability has been discharged by the release. For the purpose of interpreting the effect of the release, the status of Goodyear as a joint tortfeasor and the extent of plaintiff’s damages have been adjudicated. Remaining for disposition are the questions of whether the wheel was defective and, if so, who was its manufacturer. These matters must be determined in the first instance in the district court. The judgment of the district court will be vacated and the case will be remanded to the district court for resolution of the factual issues, application of the pro rata release, and entry of an appropriate judgment in accordance with this opinion. . The production history of the garden cart is as follows: Goodyear manufactured the tire, which was mounted on a wheel by the wheel manufacturer. The “wheel unit” (tire and wheel) was then purchased by the Palsgrove Manufacturing Co. which used the wheel unit in its assembly of the garden cart. The assembled cart was then sold to Sears. A detailed account of the facts leading to plaintiffs injury is found in our previous opinion in this case. Sochanski v. Sears, Roebuck & Co., 621 F.2d 67 (3d Cir. 1980). . Under the Pennsylvania Uniform Contribution Among Tortfeasors Act, 42 Pa. Con. Stat. Ann. §§ 8321-27 (Purdon Supp. 1982), a release in favor of one joint tortfeasor does not discharge another tortfeasor unless the release so provides. Id. at § 8326. To recover the remaining portion of the claim from any other party, however, the plaintiff must establish that the non-released party is a joint tortfeasor. Little v. Dresser Industries, Inc., 599 F.2d 1274 (3d Cir. 1979). If joint tortfeasor status is established, then the non-released party is entitled to have the claim against him reduced in accordance with the payments and terms of the release. If the consideration is less than the released party’s share of liability, then the obligation of the non-released party is reduced by a pro rata share. If the released party pays more than his pro rata share, then the non-released party is entitled to have the claim reduced by the total amount of consideration paid under the release. 42 Pa. Con. Stat. Ann. § 8326. The released party would then have a right of contribution against the other party for the amount paid in excess of a pro rata share, since that much of the non-released party’s liability would have been extinguished by the release. Id. at § 8324(c); see, Castillo v. Roger Const. Co., 560 F.2d 1146 (3d Cir. 1977); Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1962), allocatur refused (1963). . Strictly speaking, only the denial of Sears’ motion for judgment n.o.v. is before us on this appeal. The action of the district court in finding Geneva to be a joint tortfeasor, however, does affect the outcome of the case and must be discussed. . Interrogatory 1 read: “Was plaintiff’s exhibit 1 [the tire] in a defective condition when it was sold by defendant Goodyear?” The jury answered, “Yes.” Interrogatory 4 read: “Was the wheel unit, that is, plaintiffs exhibit 1 [the tire] mounted on plaintiff’s exhibit 3 [the wheel] in a defective condition when sold by defendant Sears?” Answer, “Yes.” . It is understandable that the trial court and the parties saw no need at trial to determine whether Geneva was the manufacturer of the wheel. The plaintiff had not filed a claim against Geneva and Sears had made a motion to withdraw its third-party complaint against the company. As a practical matter, the plaintiff had two solvent defendants and had no reason to concern himself with Geneva. The question of Geneva’s liability became important only after the pro rata release was given. . Sears’ right to recover from the wheel manufacturer, if its identity is discovered, is not a matter presently involved in this litigation. See Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co,, 372 F.2d 18 (3d Cir. 1966). 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_respond1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. William L. RICHARDS, Jr. and Frances M. Richards, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. No. 17244. United States Court of Appeals Sixth Circuit. Aug. 17, 1967. William L. Richards, Jr., in pro. per. J. Nicholas McGrath, Atty., Dept, of Justice, Washington, D. C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews, Anthony Zell Roisman, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent. Before CELEBREZZE, PECK and McCREE, Circuit Judges. ORDER. The facts of this case were stipulated to the Tax Court, from which this appeal was perfected, and are not in issue. They establish that in petitioner-appellant’s Federal income tax return for 1962 he claimed a deduction for the entire amount of payments made during the taxable year on account of a mortgage executed by him and his former wife. They then owned the subject property jointly, but under the terms of a separation agreement entered into in 1958, when they were divorced, appellant conveyed his one-half interest in the property to their four children. The respondent-appellee disallowed one-half of the amount of the mortgage payments claimed by appellant as an alimony deduction and the Tax Court confirmed that determination. 26 U.S.C. § 215(a) permits as a deduction in the return of a taxpayer paying alimony amounts includable “in the gross income of his [former] wife,” and therefore the dispositive issue in this case is whether the one-half of the mortgage payments disallowed by appellee constituted taxable income to appellant’s former wife. As above indicated, there is no issue concerning the deductibility of one-half of the mortgage payments; that one-half increased the value of the former wife’s equity in the property and constituted income to her. Conversely, the remaining one-half increased only the value of the equity of the four children, and not only did not in any way increase the value of the former wife’s holdings but also did not constitute taxable income to her. The disallowance by the appellee and the conclusion of the Tax Court properly reflect the applicable law. See Kiesling v. United States, 349 F.2d 110 (3d Cir. 1965); Seligmann v. Commissioner of Internal Revenue, 207 F.2d 489 (7th Cir. 1953); Neely B. Taylor, Jr., 45 T.C. 120; and James Parks Bradley, 30 T.C. 701. Affirmed. Petitioners-appellants filed a joint return for the year in question, a remarriage having occurred. Since, however, we are here concerned only with the deduction claimed by the husband the term “appellant” will be hereinafter used. 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	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. FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS and Salaried Employees Association of the Baltimore Division v. WESTINGHOUSE ELECTRIC CORPORATION, Appellant. No. 83-5765. United States Court of Appeals, Third Circuit. Argued May 18, 1984. Decided June 12, 1984. Alfred W. Vadnais (argued), John J. Myers, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellant Westinghouse Electric Corporation. Patrick J. Thomassey (argued), Monroe-ville, Pa., for appellees Federation of Westinghouse Independent Salaried Unions and Salaried Employees Association of the Baltimore Division. Before GIBBONS and HUNTER, Circuit Judges, and RAMBO, District Judge . Hon. Sylvia H. Rambo, United District District Judge for the Middle District of Pennsylvania, sitting by designation. OPINION OF THE COURT GIBBONS, Circuit Judge: Westinghouse Electric Corporation appeals from an order, entered in a suit by the Federation of Westinghouse Independent Salaried Unions and the Salaried Employees Association of the Baltimore Division, pursuant to Section 301(A) of the Labor Management Relations Act, 29 U.S.C. § 185(a), directing Westinghouse to arbitrate a grievance on behalf of a former Westinghouse employee. The appeal requires that we determine what statute of limitations applies to a suit to compel arbitration in accordance with the terms of a collective bargaining agreement, whether that limitations period expired before the suit was filed, and whether the underlying dispute is arbitrable. We conclude that section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) is the most analogous statute of limitations, that there are material issues of disputed fact as to whether the action to compel arbitration was timely under that statute, and that if the suit was timely filed the dispute is arbitrable. Thus we remand for a determination of the question of when the cause of action to compel arbitration accrued to the plaintiff unions. I. The Dispute On June 25, 1981, Dorothea Armstrong, an employee in the Westinghouse Aerospace Division in Baltimore, was notified by the division personnel manager that she would be treated as a “voluntary quit” because she had been absent from work without explanation for several weeks. The personnel manager relied on a local supplement to the Collective Bargaining Agreement between Westinghouse and the Federation providing: An employe who is absent without permission for a period of (5) working days, and the employe’s supervisor or, in his absence, the Medical Department, has not received a report during this period giving a satisfactory reason for such absence, shall be considered as having voluntarily quit unless he can show extenuating circumstances making it impossible for him to report. App. at 284. On June 29, 1981 the Salaried Employees Association filed a grievance on Armstrong’s behalf, claiming that she had been unjustly released, and seeking reinstatement with back pay. The grievance was filed pursuant to Section XV of the Federation-Westinghouse Collective Bargaining Agreement which provides a local grievance procedure, and, with specified exceptions, a no-strike undertaking. The grievance went through company grievance procedures, culminating, at the final in-house stage, with a denial on December 18, 1981. In the December 18, 1981 letter denying the grievance Westinghouse took the position that Armstrong, having repeatedly failed to respond to requests that she provide information about her claimed illness or return to work, should be treated as a voluntary quit. On January 15, 1982 the Federation demanded arbitration. This demand was made pursuant to Section XY-A of the Federation-Westinghouse Collective Bargaining Agreement which provides in relevant part: 1. Grievances, other than those concerning probationary employes, which remain unsettled after the grievance procedure has been exhausted pursuant to Section XV and which protest only a disciplinary penalty, release, or discharge of an employe allegedly imposed without just cause, shall be arbitrable upon a valid request of either the Federation or the Company. In the arbitration of such grievances, the authority and jurisdiction of the arbitrator shall be limited to determining whether the Company’s action was without just cause, and if so, what shall be the remedy. 2. Grievances involving any other disputes, including alleged violations of this Agreement or a local supplement hereto, shall not be arbitrable except by mutual written agreement between the Federation and the Company setting forth the specific dispute to be arbitrated. App. at 38. On January 29, 1982, Westinghouse responded to the demand for arbitration by stating that it would not arbitrate because “[t]his dispute is not subject to demand arbitration and the Company is unwilling to process the grievance into arbitration by special agreement.” Thus on January 29, 1982 Westinghouse informed the Federation that it would arbitrate under neither of the quoted arbitration clauses. On February 1, 1982, the Federation informed Westinghouse in writing that it did not intend to pursue legal action to compel arbitration, but would, instead, authorize its Baltimore Affiliate to strike. The reference to strike authorization was made because the no strike covenant in Section XV is qualified by this provision: The Federation may authorize an Affiliate to strike a bargaining unit in which a grievance arises provided the grievance procedure has been exhausted at the appeal level, a written request has been made for arbitration and denied in writing or a response agreeing to arbitrate is not made within fifteen (15) days after receipt of the request, and the federation notifies the Company, in writing, that it does not intend to pursue legal action seeking to compel arbitration. App. at 36a (emphasis in original). Faced with the threat of a local strike, Westinghouse negotiated further. As a result of those negotiations it received from the Federation’s General Counsel the following letter: This confirms our telephone conversations yesterday on the above case. I had reported to you last week that this office had forwarded the letter of February 1, 1982 to you notifying you that the Union did not intend to pursue action to compel arbitration, and authorizing the Affiliate to strike, in error. As you know, the local has taken no action with respect to the strike notice. I suggested to you that we should agree that the said letter of February 1, 1982 may be withdrawn by us. Your suggestion yesterday was that we should proceed to withdraw the letter of February 1, 1982 and you indicated your belief that we had the right to do so. Accordingly, I am hereby notifying you that we are withdrawing the notifications set forth in the February 1, 1982 letter, a copy of which is enclosed for your convenience. At the same time, I ask you to reconsider your denial of arbitration in this case, as your classification of it as inarbitrable as a voluntary quit is clearly without any legal justification, particularly in view of the court’s opinion in the Bender case. Also, I believe it would be justified for you to even reconsider the merits of the case at this time, in view of the terrible injustice that has resulted to Miss Armstrong. App. at 112. On June 25, 1982 Westinghouse responded: After various Company-Union communications subsequent to your January 15, 1982, request for arbitration of the captioned dispute, including a request that the Company reconsider its denial of arbitrability, the subject grievance has again been reviewed. While the Company continues to believe that the dispute is not arbitrable as a matter of right under Section XV-A, Paragraph 1, it would be willing to proceed to arbitration by mutual agreement in this particular case, providing there is agreement as to the matter to be decided by an arbitrator, as noted in Paragraph 2 of Section XV-A. To this end, I am enclosing the original and three copies of a Submission Agreement. If it is suitable to you, please sign and return the original and two copies to me for completion. I will then send you the completed original, and a copy for your files, and you could forward the original to the American Arbitration Association when requesting a panel of arbitrators under Section XV-A, Paragraph 5. It should be understood that the enclosed Submission is offered on the condition that should it be rejected, such offer will not in any way operate or be construed to prejudice the Company’s already stated position as to non-arbitrability of the subject grievance. Similarly, it is understood that your acceptance of the Submission in this specific instance will not prejudice the Federation’s position as to arbitrability in any other case. The Federation and Westinghouse were unable to agree on a form of submission for voluntary arbitration under Section XV-A, Clause 2, and on October 2,1982 the Federation filed this suit to compel arbitration under Clause 1, of Section XV-A of the Agreement. II. Proceedings in the District Court Westinghouse moved to dismiss the complaint on the ground that the action was time barred by the thirty day limitations period in 42 Pa.Cons.Stat.Ann. § 7314(b) (Purdon 1982), governing applications to vacate arbitration awards. Distinguishing United Parcel Service Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981), and relying on United Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966) the district court held that the most appropriate statute of limitations was the six-year time bar of 42 Pa. Cons.Stat.Ann. § 5527 (Purdon 1982), governing actions for the enforcement of contracts. Thereafter, the Federation moved for summary judgment. On October 13, 1983, the district court granted that motion, and ordered Westinghouse to submit the Armstrong grievance to arbitration. This appeal followed. III. The Appropriate Statute of Limitations When the district court denied Westinghouse’s motion to dismiss on statute of limitations grounds it was without the benefit of the Supreme Court’s subsequent decision in DelCostello v. Int’l. Broth. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). That important decision requires that we consider whether the rule of United Auto Workers v. Hoosier Cardinal Corp., supra, which referred actions under section 301 of the Labor Management Relations Act to state statute of limitations laws, retains vitality. DelCostello involved a suit by union members against their employers for breach of collective bargaining agreements, and against their collective bargaining representatives for breach of the duty of fair representation. Relying on United Parcel Service v. Mitchell, Inc., supra, lower courts had applied the relatively short state law statutes of limitations governing actions to vacate arbitration awards. The Supreme Court reversed, holding that the six-month statute of limitations in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b) which establishes a six-month period for making charges of unfair labor practices to the NLRB, was the appropriate reference. The DelCostello court rejected the statutes of limitation for vacation of arbitration awards as far too short, since an employee pursuing the kind of hybrid section 301 duty of fair representation claim there presented would ordinarily be without the assistance of an expert advising him of the time within which a suit to compel arbitration should be brought. 462 U.S. at —, 103 S.Ct. at 2291. Moreover, the Court rejected Justice Stevens’ suggestion that state-law statutes of limitations for legal malpractice should be used as the closest analogy to a duty of fair representation claim. Id. at —, 103 S.Ct. at 2292. Referring to its recent decision in United Parcel Service, Inc. v. Mitchell, supra, the DelCostello majority emphasized that the system of industrial self-government encouraged by federal law, “with its heavy emphasis on grievance, arbitration, and the ‘law of the shop,’ could easily become unworkable if a decision which has given ‘meaning and content’ to the terms of an agreement ... could suddenly be called into question ... years later.” Id. at —, 103 S.Ct. at 2293, quoting Mitchell, supra 451 U.S. at 64, 101 S.Ct. at 1564. The Court therefore turned to section 10(b) as “a federal statute of limitations actually designed to accommodate a balance of interests . very similar to that at stake here.'...” Id. A violation of the duty of fair representation was found to be substantially similar to an unfair labor practice, and section 10(b) manifested Congressional concern for “the proper balance between the national interests in stable bargaining relationships and the finality of private settlements, and an employee’s interest in setting aside what he views as an unjust settlement under the collective bargaining system.” Id. 462 U.S. at —, 103 S.Ct. at 2294, quoting Mitchell, supra 451 U.S. at 70, 101 S.Ct. at 1567 (Stewart, J., concurring). The Court concluded with the observations that it would disregard a state law statute of limitations “when a rule from elsewhere in Federal law provides a closer analogy than available state statutes, and when the Federal policies at stake and the practicabilities of litigation make that rule a significantly more appropriate vehicle for interstitial lawmaking....” Id. Unlike this case, in which the Federation relies solely on section 301, DelCostello presented hybrid section 301 duty of fair representation claims. Thus it was not necessary for the Court to expressly overrule United Auto Workers v. Hoosier Cardinal Corp. In a somewhat Delphic footnote, Justice Brennan observed: In some instances, of course, there may be some direct indication in the legislative history suggesting that Congress did in fact intend -that state statutes should apply. More often, however, Congress has not given any express consideration to the problem of limitations periods. In such cases, the general preference for borrowing state limitations periods could more aptly be called a sort of fallback rule of thumb than a matter of ascertaining legislative intent; it rests on the assumption that, absent some sound reason to do otherwise, Congress would likely intend that the courts follow their previous practice of borrowing state provisions. See also Auto Workers v. Hoosier Corp., 383 U.S. 696, 703-704, 86 S.Ct. 1107, 1111-1112, 16 L.Ed.2d 192 (1966). Justice Stewart pointed out in Mitchell that this line of reasoning makes more sense as applied to a cause of action expressly created by Congress than as applied to one found by the courts to be implied in a general statutory scheme— especially when that general statutory scheme itself contains a federal statute of limitations for a related but separate form of relief. 451 U.S. at 68, n. 4, 101 S.Ct. at 1564, n. 4 (opinion concurring in the judgment); see also McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 228-229, 78 S.Ct. 1201, 1206, 2 L.Ed.2d 1272 (1958) (BRENNAN, J., concurring). The suits at issue here, of course, are amalgams, based on both an express statutory cause of action and an implied one. See infra, at 2290-2291 and n. 14. We need not address whether, as a general matter, such cases should be treated differently; even if this action were considered as arising solely under § SOI, the objections to use of state law and the availability of a well-suited limitations period in § 10(b) would call for application of the latter rule. 462 U.S. at —, n. 12, 103 S.Ct. at 2287, n. 12 (emphasis added). The only clear signal that can be read from footnote 12 in Del-Costello is that the applicability of Hoosier Cardinal to pure section 301 suits is now an open question. Those courts which have considered that question have evidenced uncertainty. In McPeek v. Dayton Forging and Heat Treating Co., 574 F.Supp. 300, 304 (S.D.Ohio 1983) a case in which the plaintiff asserted that a duty of fair representation claim was also a straight-forward breach of collective bargaining agreement claim, the court observed in dicta that “even if Plaintiffs’ suit were somehow capable of being construed as a non-hybrid § 301 action, only against the employer, it would not follow that NLRA § 10(b) would not govern.” In United Brotherhood of Carpenters & Joiners v. FMC Corp., 724 F.2d 815 (9th Cir.1984), considering a union’s suit to vacate an arbitration award, the court applied a state 20-day statute of limitations for such actions. Arguably, in suits to vacate an arbitration award that result is consistent with the policy relied on by the DelCostello majority of prompt termination of industrial disputes. In International Union of Elec. Radio & Machine Workers v. Ingram Mfg. Co., 715 F.2d 886, 888-89 (5th Cir.1983), and Derwin v. General Dynamics Corp., 719 F.2d 484, 487 (1st Cir.1983), both involving suits by unions under § 301 to enforce arbitration awards, the courts applied much longer general state statutes of limitations. Here, too, the results are arguably consistent with the DelCostello policy of stability in industrial relations, since the Union may reasonably assume that employers will abide by arbitration awards and thus preserve stability in the bargaining relationship. No gost-DelCostello case has been called to our attention dealing with the issue presented here-a union’s section 301 suit to compel arbitration. We hold that essentially for the same reasons relied on in DelCostello for borrowing section 10(b) as the statute of limitations in hybrid suits, that section should be' borrowed for application to actions under section 301 to compel arbitration. Application of a six-year state statute of limitations stretches out industrial disputes far longer than most recent cases have deemed desirable. Application of the extremely short Pennsylvania statute of limitations governing actions to confirm arbitration awards unnecessarily shortens the time during which parties to a collective bargaining agreement may, after exhaustion of in-house grievance steps, attempt an informal resolution of disputes. Moreover, grievances often involve an alleged activity which is also an unfair labor practice over which the National Labor Relations Board has jurisdiction. The Board frequently defers the consideration of such charges to the arbitral forum if it is available. See Spielberg Mfg. Co., 112 N.L.R.B. 1080, 1082 (1955); Collyer Insulated, Wire, 192 N.L.R.B. 837, 842 (1971). Thus it makes a great deal of sense to have a common statute of limitations for unfair labor practice charges and for suits to compel arbitration. We recognize that there is an interaction between the statute of limitations governing the Union’s cause of action to compel arbitration and the employee’s cause of action for breach of a duty of fair representation. It is clear, however that the two causes of action arise at different times and out of different circumstances. The Union’s cause of action to compel arbitration arises when the employer takes an unequivocal position that it will not arbitrate. The employee’s hybrid cause of action arises when the Union takes an unequivocal position that it will not seek arbitration, or when the statute of limitations on its cause of action has run. Thus, by holding that the section 10(b) six-month statute of limitations governs both the Union’s section 301 cause of action and the employee’s hybrid cause of action we achieve a maximum period of twelve months within which a grievance which an employer refuses to arbitrate may result in litigation. That result is, we believe, consistent with the policies identified in the DelCostello opinion. IV. Application of Section 10(b) Because the district court held that the Pennsylvania six-year statute of limitations applied, it did not consider precisely when the Federation's cause of action to compel arbitration arose. Westinghouse contends that we may nevertheless affirm, because as a matter of law that cause of action arose when the Union received its January 29, 1982 letter. Thus, Westinghouse urges, the cause of action was time barred no later than July 31, 1982. The Federation contends that had nothing more occurred after January 29, 1982, Westinghouse would be right, but that the negotiations outlined in Part I above establish that Westinghouse did not finally refuse to arbitrate until some time in June of 1982. If the court so concluded, the October 1982 suit would be timely. In light of the correspondence outlines in Part I, we conclude that the date on which Westinghouse finally refused arbitration presents a material issue of disputed fact, which must be resolved in the first instance by the trial court. Thus unless we can hold, as a matter of law, that the underlying dispute clearly lies outside the scope of the arbitration clause, a remand for resolution of that fact issue is required. V. The Underlying Dispute is Arbitrable Westinghouse contends that the trial court erred in granting summary judgment against it on the issue of arbitrability, because clause 1 of Section XV-A does not include Armstrong’s grievance among those for which compulsory arbitration is available. It urges, moreover, that summary judgment was granted on the erroneous assumption that the question of arbitrability is for the arbitrator, not for the court. It is not at all clear that the district court proceeded on the assumption that the question of arbitrability was for the arbitrators rather than for the court, although ambiguous language in the court’s opinion might be so construed. The ambiguity is of no moment for the disposition of the appeal, however, because our review of a summary judgment is plenary. In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 257 (3d Cir.1983). Thus we must make an independent determination of the question of arbitrability. It is Westinghouse’s position that Armstrong’s termination was not a “disciplinary penalty, release, or discharge of an employe[e] allegedly imposed without just cause,” to which clause 1 applies, but a “voluntary quit.” That, however, is a matter of dispute between the parties going to the merits of the grievance, which alleges that the termination was in fact involuntary and without just cause. Clearly this factual dispute is one for which the parties selected an arbitral forum, for Westinghouse’s “voluntary quit” position is inextricably interwoven with the propriety of Armstrong’s conduct. Thus we cannot say “with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). Doubts concerning arbitrability must be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 23-26, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). The fact that the merits of the underlying dispute and the question of arbitrability are interrelated does not enlarge the court’s authority to resolve the grievance. Sharon Steel Corp. v. Jewell Coal & Coke Co., 735 F.2d 775 at 778. (3d Cir.1984). Thus we conclude that the trial court did not err in granting summary judgment that the underlying dispute is arbitrable. V. Conclusion The judgment appealed from will be reversed and the case remanded for a determination of the date when Westinghouse finally declined to arbitrate, and whether in light of that determination the action to compel arbitration is barred by section 10(b) of the Labor Management Relations Act. If the action is not time-barred arbitration should be ordered. . The Court noted that a Maryland statute might be an appropriate reference, but found no significant difference between the law of the forum state, Pennsylvania, and that of the place of employment, Maryland. . In Scott v. Local 863, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., 725 F.2d 226, 227 (3d Cir.1983) we held that the DelCostello holding should be applied retroactively to district court decisions made before it was announced. . See, e.g., Service Employees Int'l. Union v. Office Center Services, 670 F.2d 404, 409 (3d Cir.1982); Liotta v. Nat'l. Forge Co., 629 F.2d 903 (3d Cir.1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981); Assad v. Mount Sinai Hospital, 703 F.2d 36 (2d Cir.), vacated sub nom. Dist. 1199, Natl Union of Hospital Employees v. Assad, — U.S. —, 104 S.Ct. 54, 78 L.Ed.2d 73 (U.S. Sept. 27, 1983); Lumber Prod. & Indust. Workers Local 3038 v. Champion Int'l. Corp., 486 F.Supp. 812 (D.Mont.1980). . The same statute of limitations probably should apply to employer section 301 suits to compel arbitration. That issue is not likely to arise with any frequency, however, since employers usually couple requests for such relief with requests for Boys Market injunctions, and are not likely to delay in instituting such actions. 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_stateclaim	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court 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. MASSACHUSETTS UNIVERSALIST CONVENTION v. HILDRETH & ROGERS CO. No. 4477. United States Court of Appeals First Circuit. July 7, 1950. Mayo Adams Shattuck, Boston, Mass. (Lewis L. Wadsworth, Jr., A. Ingham Bicknell, and Haussermann, Davison & Shattuck, all of Boston Mass., with him on brief), for appellant. James Lawrence Fly, New York City (James A. Donovan, Lawrence, Mass., William C. Fitts, Jr., New York City, and Fly, Fitts & Shuebruk, New York City, with him on brief), for appellee. Before MAGRUDER, 'Chief Judge, and WOODBURY and FRANK, Circuit Judges. PER CURIAM. The controversy in this case arose out of the refusal of the defendant to allow the use of the facilities of its radio station on Easter Sunday, April 17, 1949, for the broadcasting by a representative of the plaintiff, Massachusetts Universalist Convention, of a sermon, the text of which is appended at the end of this opinion. A motion to dismiss having been allowed, the district court entered a judgment of dismissal from which this appeal is taken. We express our agreement with the memorandum of decision filed by the district court, 87 F.Supp. 822, 823, as follows: “Ford, District Judge. “Plaintiff, a Massachusetts charitable corporation devoted to the diffusion of religious knowledge, brings this action for damages and an injunction against defendant, a Massachusetts corporation, engaged in the radio broadcasting business and duly licensed to operate a radio broadcasting station in Lawrence, Massachusetts, with the call letters WLAW. “The complaint alleges that the action arises under the Federal Communications Act of 1934, 47 U.S.C.A. § 151 et seq. It sets forth a contract under which defendant was to furnish its broadcasting facilities for a series of sermons prepared by plaintiff, the contract providing in paragraph 6(b) that ‘Broadcasts prepared by the agency are subject to the approval of the station both as to artists and to broadcast content.’ It is further alleged that pursuant to the contract plaintiff submitted to defendant the manuscript of one of these sermons to be given on Easter Sunday, April 17, 1949. This sermon expressed what is presumably the Universalist doctrine which does not accept the Resurrection of Christ as á physical and historical fact, but gives to the story of the Resurrection a purely metaphorical or spiritual significance. Plaintiff alleges that defendant refused to provide facilities for broadcasting this sermon, and that defendant in justification of its action claimed that-the broadcast of this sermon on that particular day would, by reason of the religious views expressed, be shocking to general public sensibility, and that, therefore, the broadcasting of it would be a violation of defendant’s duty under the Federal Communications Act to operate its station in the public interest. Plaintiff asks damages for the injury suffered by it and an order requiring defendant to provide facilities for the broadcast of the sermon on next Easter Sunday. Defendant has moved to dismiss for lack of jurisdiction and for failure to state a claim upon which relief can be granted. “It is clear that the complaint is not intended merely to assert a common law cause of action for breach of contract, over which this court would have no jurisdiction, since diversity of citizenship is not present here. Nor does it rely solely on the fact that the defendant may raise a defense to the action based on defendant’s duty under the Federal Communications Act. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70. The claim made by the plaintiff is clearly predicated on the theory that, once its contract has been made, it has a positive right, arising under the Federal Communications Act and enforceable in this court, to have its sermon broadcast by the defendant. Whether or not the plaintiff’s contention is correct, the complaint does squarely raise a question on the merits, the solution of which depends on the proper interpretation to be given a federal law. When such a question is thus raised by the complaint, and is not insubstantial and frivolous, nor immaterial and merely raised for the purpose of obtaining jurisdiction, then this court has jurisdiction over the action. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. The complaint contains no allegation as to the amount in controversy, but this is not necessary since the case is one arising under a law regulating commerce. 28 U.S.C.A. § 1337. Weiss v. Los Angeles Broadcasting Co., 9 Cir., 163 F.2d 313, 314. “There remains the question of whether the complaint states a claim on which relief can be granted. Plaintiff’s contention is that under the Communications Act the business of radio broadcasting is affected with a public interest and that, in consequence, contracts between the owner of a broadcasting station and persons seeking to broadcast are likewise affected with a public interest. Therefore, plaintiff urges that the Communications Act, in imposing on licensees a duty to broadcast in the- public interest, by implication, confers on those contracting for broadcasting' time a right, notwithstanding any contractual provisions for rejection of programs, to have their material broadcast except when the content of the broadcast is not in the public interest. This right, it is argued, is enforceable by an action in this court and it is for the court to decide whether or not a rejected program is in the public interest. “Such an interpretation of the Communications ' Act must be rejected. Certainly the Act does not expressly confer on anyone any right to broadcast any material at any time, whether or not it has a contract for such a broadcast. Nor does there seem to be any basis for an implication o-f such a right. There is nothing in the Act to indicate that the mere fact that one party to the contract is a licensee under the Act gives to the other contracting party any greater rights than those which the law ordinarily gives to parties to a contract. “It is true that licensees under the Act have a duty to operate their stations so as to serve the public interest. ‘The licensee has the duty of determining what programs shall be broadcast over his station’s facilities, and cannot lawfully delegate this duty or transfer the control of his station directly to the network or indirectly to an advertising agency. He cannot lawfully bind himself to accept programs in every case where he cannot sustain the burden of proof that he has a better program. The licensee is obliged to reserve to himself the final decision as to what programs will best serve the public interest. We conclude that a licensee is not fulfilling his obligations to operate in the public interest, and is not operating in accordance with the express requirements of the Communications Act, if he agrees to accept programs on any basis other than his own reasonable decision that the programs 'are satisfactory.’ Federal Communications Commission Report on Chain Broadcasting, May 2, 1941, quoted in National Broadcasting Co. v. United States, 319 U.S. 190, 205, 63 S.Ct. 997, 87 L.Ed. 1344. “This freedom of the licensee to determine what programs his station shall broadcast is not, of course, an absolute and unfettered one. The exercise of the right is subject to review by the administrative agency, the Federal Communications Commission. At least once every three years the Commission must determine whether a renewal of the license is in the public interest, 47 U.S.C.A. § 307, and it may review the action of the licensee in selecting programs at any time in proceedings under 47 U.S.C.A. § 312. Albuquerque Broadcasting Co. v. Regents of New Mexico College of Agriculture and Mechanic Arts, D.C., 70 F.Supp. 198, 202. The enforcement of the Act and the development of the concept of public interest under the Act are thus entrusted primarily to an administrative agency. The only function of the courts in the enforcement of the Act is the exercise of the right to enforce or review orders of the Commission under Sections 401 and 402 of the Act. McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, 3 Cir., 151 F.2d 597. “In the light of the scheme of enforcement by means of an administrative agency which Congress has chosen to select, it cannot be held that Congress intended to •create by implication additional rights such as those for which plaintiff contends. ‘The Communications Act is not designed primarily as a new code for the adjustment of conflicting private rights through adjudication. Rather it expresses a desire on the part of Congress to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission.’ Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 439, 84 L.Ed. 656. The enforcement of the Act by the Commission would be hindered rather than aided if the plaintiff’s contentions were -correct. The problem of defining the ‘public interest’ under the Act is one appropriately left to the Commission rather than in the first instance to the courts, for it is one which is complicated by problems peculiar to the radio industry. The number of channels available for radio broadcasting is limited by technical considerations. Hence, the question of determining, what is in the public interest is not simply one of deciding whether any given broadcast is or is not in the public interest in the absolute sense. It is rather a ■question of whether the allocation of the available facilities at any given time and under any given circumstances is more conducive to the public interest than some other -possible allocation. To hold that the Act was intended to create any vested rights in the making of any broadcast and to make such rights enforceable in the courts would limit the freedom of action of the Commission and thus defeat the successful operation of administrative enforcement. “Plaintiff has argued that on the allegations of the complaint, it has a cause of action for the violation of its right to freedom of speech and freedom of religion under the First Amendment to the Constitution. But this Amendment limits only the action of 'Congress or of agencies of the federal government and not private corporations such as defendant here. McIntire v. Wm. Penn Broadcasting Co. of Philadelphia, supra, 151 F.2d at page 601. “Therefore, the conclusion must be that the complaint sets forth no claim under the Federal Constitution or laws upon •which relief can be granted. Where such a ■decision disposes, at the outset of the case, of the federal ground upon which jurisdiction is based, it is proper to dismiss the case .as a whole, without determining whether the complaint states a common law cause of .action over which the court would have jurisdiction only by virtue of the fact that it was involved with a claim of federal right which has been determined to be unfounded. Concurring opinion of Magruder, Ch. J., in Strachman v. Palmer, October 26, 1949, 1 Cir., 177 F.2d 427. "Defendamos motion to dismiss is allowed.” As appears from the last paragraph of Judge Ford’s opinion, the district court did not purport to adjudicate the merits of a possible common law cause of action for breach of contract under the Massachusetts law, and the judgment of dismissal herein was therefore without prejudice to the right of the plaintiff to litigate any such cause of action in an appropriate state forum. On the face of the complaint and without the necessity of going to trial, the federal claim was adjudicated adversely to the plaintiff. Under the circumstances, for the reasons indicated in the concurring opinion in Strachman v. Palmer, 1 Cir., 1949, 177 F.2d 427, 431, though the court below may have had “jurisdiction” to adjudicate a pendent common law cause of action implicit in the allegations of the complaint, it committed no abuse of discretion in declining to do so. We do not think that decision of a common law claim for breach of contract would necessarily turn, indirectly, upon a federal question as to what is in the “public interest” within the meaning of the Federal Communications Act. For all we know, the escape clause might be read by a state court as meaning that the station reserves the right to reject any manuscript the broadcasting of which, in the honest opinion of the licensee, might be incompatible with its obligations under the license. There would also be a question of state law, in view of the fact that the contract in question apparently expired of its own time limitation on May 1, 1949, whether a court of equity would in any event give the specific mandatory relief requested (which is obviously the plaintiff’s chief concern in this litigation), namely, an order that the defendant be required “to provide fifteen minutes of broadcasting time on next Easter Sunday at an appropriate time for the broadcast of the sermon hereto attached.” However much we may feel that the defendant’s refusal to allow the broadcasting of the temperate, sincere and dignified sermon in question was indeed a sorry performance, nevertheless we think that the district judge was not unreasonable in concluding that it was more appropriate to leave to the state courts the adjudication of whatever rights the plaintiff might have for breach of contract. The judgment of the District Court is affirmed. . The sermon in question was as follows: “Is Jesns Risen 7" The hope for immortality has long burner! in tha parson* of mankind W* live so few years upon the earth; the flesh is so insecure. We leave so many tasks unfinished when we die. There are so many things that we would like to continue in, to see our children and friends proceed in their lives, to watch the pageant of the nations unfold, to see what further mysteries of nature will be uncovered by advancing science. When our pulse quiets and the flesh cools we are not yet through with love and life. Will there not be another life beyond this? Can this death be the end of our knowing and breathing? Modest men will ádmit that they have no answer to this dilemma, for they have not penetrated the realms beyond life. Men are creatures of life, with senses and ways that can experience and comprehend the world only as living creatures. If some soul persists after the body decays we have not eyes sharp enough to discover its form and movements. If there is a voice speaking from beyond the grave we have not ears sharp enough to catch the words. True, some claim to be able to contact a spiritual world, but most of us are unconvinced by the evidence with which we are acquainted. Unable to solve this mystery of themselves men have sought for revelation from spiritual and supernatural powers. They have sought a being whose knowledge would be omniscient and perfect, whose power would be almighty, who could assure them of the hereafter, who could open to them the door to an eternal life. Many have been the gods and saviors to whom men have looked for their intimations and securities of immortality. Jesus is but one of many thousands of saviors from whom yearning humanity has attained faith and assurance; many others have possessed virtue and supernatural power sufficient to provide immortality for all who called upon their name. More have called upon Amitahba Buddha than have called upon the name of Christ Jesus. For many years Mithra, rather than Jesus, was the main salvation god of the Roman world. In the time of early Christianity there were dozens of saviors in the Roman Empire who were believed to have died and to have risen from the dead. Each savior had his religious following who were baptized into his mysteries, who ate of his flesh and drank of his blood in communion rites, and who thereby received food of immortality, and believed that they would also rise from the dead as had their savior-god. Perhaps these were false saviors and Jesus the only true one. His followers, the early Christians, after several centuries of competition and persecution, managed to stamp out the followers of the other saviors, and these gods are now but names in the history of dead religions. But the story of the death of Jesus, of his burial, and resurrection is still the central belief of a great religious movement. Hymns are still sung to the risen Christ, and the evidence of his resurrection is still held by millions as a harbinger of resurrection from the grave. Was the stone pushed aside by an angel on that Easter morning many centuries ago? Did Jesus arise from the dead to walk forth from the tomb on that early morning? Was he seen by his-disciples? Did he ascend into heaven to sit at the right hand of his heavenly father, there to intercede for the forgiveness of men? Did he, in his resurrection, furnish supernatural powers to-his followers so that through his church the power to eternal fife is passed on to all who believe upon him? His multitudes of followers have faith in these things. They seem to find sufficient evidence in their own hearts. There are others of us who must confess that we do not know. We cannot penetrate the dim and superstitious world in which Jesus lived to know for sure what is fact and what is wishful thinking in the stories that have come down about Jesus. We cannot make much of the New Testament match the world as we know it. The miracles seem to us to be incredible, and in this world of science we cannot imagine people rising from the dead in any supernatural way. There have been cases when a heart that has ceased beating has been started again by the shock of a drug or by being massaged by a surgeon. People who have ceased breathing have been revived, but we also know that if the body has been dead more than a very few minutes attempts at restoration are futile, nor does any supernatural power bring it from the dead. Some of us have become so used to living in the temper of such a natural world that we can no longer have faith that the supernatural events associated with Jesus were actual happenings. We have had to reinterpret a great deal of ancient history in the light of later knowledge. We say, “The people of those times believed these .things to be facts, but they were most likely mistaken.” Then we try to reconstruct what likely did happen, but always we are dealing with guesses. The’ ancients were not accurate historians; they seldom knew how to tell fact from fancy and history from legend and imagination. Scientific historical activity is the most recent accomplishment of men. So we must answer the question, “Is Jesus risen ?” with the answer, “We do not know.” The evidence seems insuflicient to render a verdict. But there is another manner in which Jesus is truly risen, and we find this in its way to be not only an intimation of immortality but truly a promise of a kind of immortality. Whether or not Jesus walked from the tomb on that far away morning, in a very real sense he did not die. He was kept alive in the minds and hearts of his followers. Whenever they recalled his parables and teachings, whenever they remembered his face, his actions, his love, Jesus was reborn within them, he was recovered from the grave. His followers at first seemed to have scattered, believing that the dream of a great movement to restore Israel had failed, afraid that the fate of Jesus might be visited on his associates, but very soon they recovered their faith and confidence. Very soon they profited by the teachings of Jesus and saw that they must carry on his labors to build the kingdom of God. Jesus was risen because much of his character and wisdom was implanted in his disciples. They, like him, became of the stuff of martyrs and some followed him in the ways of persecution and death for the sake of the truth. The greatness of the resurrection of the flaming spirit and nobility of Jesus can be discovered in the writing of the gospels. Jesus wrote down nothing himself. His sayings were scattered to a motley group, largely made up of simple working folk. His disciples were surely not a band of scholars; there was no Boswell among them to carefully record his conversations and yet his words were remembered, repeated over and over, and at last written and have endured in their imperishable beauty for two millenia. This fact is a great tribute to the wisdom and goodness of simple people. They knew greatness when they saw and heard it; they remembered. Through generations of persecution they remembered and through their loyalty the message and example of Jesus was preserved. Through them his life did not perish with the crucifixion of his body. Jesus was not one to prize the flesh; his body meant little to him. Ho prized peace, love, truth, righteousness. He gave up the security and comfort of home, he punished his body in the wilderness and on the roadways of Palestine in order to carry his gospel to the people. He refused to flee danger; because he put the life of the body second he was killed. The body was killed, but not Jesus, for he had immortalized himself in the lives and memories of those who had followed after him. Isn’t it a great encouragement to know that human beings have within them the intelligence, loving spirit, goodness and insight to recognize a Jesus when he appears among them? Is it not a great commentary on the inherent worth of human nature to know that Jesus was not allowed to remain in the tomb but was raised from the dead by the people themselves, who brought forth his resurrection in their own lives? Perhaps Jesus did rise in his own flesh; perhaps not, but this we do know: he arose in the flesh of millions of his brothers and sisters. They have given their bodies to his use so far as their knowledge and love have enabled them. Whether any supernatural power can raise us from the dead, our fellows who love us can so do. And to know that humanity will choose one as simple, as beautiful, as sacrificing as Jesus to immortalize in their lives; that they will treasure him in their hearts above countless others of lesser worth — is not that a great encouragement in our faith in mankind? There is a more important question to be asking ourselves than whether or not Jesus arose from the tomb in which the Roman soldiers had buried him. As to that we have nothing to do. It is not to our credit whether he did or not. We should be looking into ourselves; it is our own lives for which we are responsible and with which we should be concerned. Nor should we be overly concerned about whether or not we can expect immortal life. That would mark us as selfish and self-centered. Is Jesus risen? You can know this surely only if you have raised him within yourself. The question to ask yourself is this: Have I brought Jesus to life within me? Does his spirit work in my ways, in my thoughts, in my feelings? Does his courage survive in my courage? Is Jesus risen? That is something you know, and only you. Is Jesus risen? He is if you are a maker of peace. He is if you love your enemies, if you forgive and labor to make things right between you and your brothers. He does if you have conquered hatred in your hearts and replaced it with love. He does if you love truth and goodness with all your thoughts and all your actions. Jesus is risen if people look at you and are reminded somewhat of Jesus in the way you live. Is Jesus risen? Oh so poorly, so poorly. We have left so much of him buried. In his life he said that the son of man had not where to lay his head; and even now we shut him out of our lives, out of ourselves; we will not give him a home within us. We are too busy laboring, piling up treasure soon to be eaten by rust and worm. We are too busy seeking power and the chief seat at the banquet table. We are too busy treasuring our prides and our hatreds and our fears. We are too busy stockpiling guns and planes and atom bombs; we have no time to stockpile love and forgiveness in our hearts. We are too busy building around us a fence of suspicion and steel; the walls are too thick and we cannot hear his gentle knock seeking an entrance into the hard house of our lives. We are too busy making our pacts of power and fear, dividing the house of man against itself. When will we make' a pact of peace, a pacific pact? Over every battle field the memory of Jesus, wanders, lonely, lost, dead. Over the slums of our cities the memory of Jesus wanders, amid refuse, poverty, delinquency, neglect, and in a faint voice we hear, “Inasmuch as ye have not done it unto one of the least of these my brethren, ye have not done it unto me.” In every home of spitefulness and anger, where husband and wife torture each other, where children are broken with insecurity and lovelessness, the corpse of Jesus lies, unrisen. In every prison and asylum where men are punished and neglected rather than being healed and restored, Jesus wanders forgotten, dead. “I' was in prison and ye visited me not.” In every church, full of empty show, ostentatious prayers, and vain glory, there is no home for that humbl-e, journeyman preacher named' lesus, whose pulpit was the roadside. Is Jesus risen? Look at the world around you and answer it yourself. Is Jesus risen? Look into your own-heart, search your own mind, investigate your own life, and then answer this question to yourself. 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_crossapp	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case. David BREWSTER, et al., Plaintiffs, Appellees, v. Michael S. DUKAKIS, et al., Defendants, Appellants. David BREWSTER, et al., Plaintiffs, Appellants, v. Michael S. DUKAKIS, et al., Defendants, Appellees. Nos. 85-1775, 85-1776. United States Court of Appeals, First Circuit. Argued Feb. 5, 1986. Decided March 14, 1986. Thomas A. Bamico, with whom William L. Pardee, Asst. Attys. Gen., Francis X. Bellotti, Atty. Gen., were on brief, for defendants, appellants. Steven J. Schwartz, with whom Robert D. Fleischner, Center for Public Representation, were on brief, for plaintiffs, appellees. Edward P. Leibensperger, Kurt A. Ogle, Nutter, McClennen and Fish, and Marjorie Heins, Massachusetts Civil Liberties Union Foundation, on brief for Civil Liberties Union of Massachusetts, Greater Boston Legal Services, Massachusetts Law Reform Institute and Massachusetts Correctional Legal Services, amicus curiae. Before COFFIN and ALDRICH, Circuit Judges, and PETTINE, Senior District Judge . Of the District of Rhode Island, sitting by designation. COFFIN, Circuit Judge. These are appeals from an attorney’s fee award covering work performed by counsel for the plaintiff class, residents of the Northampton State Hospital, during two and one half years subsequent to entry of a complex consent decree. The decree bound the responsible Massachusetts officials to establish a system for the care and treatment of mentally disabled persons in community residential facilities and nonresidential programs. The litigation commenced in 1976; the decree was entered in 1978; and the dis-. trict court made its first fee award in 1982, covering work performed from 1976 through 1981, in the amount of $386,204. The decision, resulting in a two-thirds reduction of the amount claimed, included an extensive analysis in which the court discussed and distinguished four kinds of work done by plaintiffs’ counsel in implementing and monitoring the decree. The court established different rates for court work, decree implementation and monitoring, general work, and travel. Id. at 1076. Although the decree called for a court-appointed Monitor, the decree also bestowed various responsibilities on the parties. Id. at 1072. The present fee application covered the period from January 1, 1982 through June 30, 1984, and included 2537.93 hours of services performed by two lawyers and a paralegal. The 191-page application included some 3500 entries (at roughly eighteen items a page) accounting for time in tenths of an hour, and coded to identify six different kinds of work. The entry described the kind of activity (e.g., “spoke w/”, “met w/”, “drafted letter”, “reviewed letter”, “deposition”, “hearing”, etc.), as well as the other person or group involved, and, usually, the subject matter (e.g., “on budget”, “on crisis intervention program”, “on deposition”). The amount claimed was $239,772.10. The district court awarded $132,639.55, a reduction of forty-four percent. The court decided three issues in favor of the plaintiffs: (1) it rejected defendants’ contention that, to recover post-judgment fees, plaintiffs must show that their efforts produced a better result than otherwise would have occurred, holding that “reasonable monitoring”, under Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir.1984) imposes a lesser burden; (2) it rejected defendants’ challenge to time spent on three motions to hold defendants in contempt, all settled before hearing, finding that the efforts helped produce favorable results; and (3) it rejected defendants’ claim that the fee award should be reduced to the extent that hours included in the fee application were also compensated by the Association of Service Providers for Persons with Handicaps (“Association”), accepting counsel’s representation that all time claimed was for service benefiting the plaintiff class. The court decided five issues in whole or in part against the plaintiffs: (1) it disallowed time spent in the unsuccessful defense on appeal of a legal services program ordered by the district court; (2) it disallowed time spent in a candidate search for the position of court Monitor; (3) it cut in half time claimed in connection with a Supplemental Agreement that never came to fruition; (4) it reduced, among other items, the claimed hourly rates from $125 and $115 for court activities to $95, from $115 and $105 for decree implementation to $85, and from $105 and $95 for general work to $75; and (5) it refused to grant plaintiffs’ request for a fifteen percent upward adjustment of the lodestar, while also denying defendants’ request for a downward adjustment. Defendants appeal the court’s refusal to adopt a rigorous “but for plaintiffs’ efforts” standard for post-judgment monitoring fees and its refusal to reduce the award to reflect payments received from the Association. Plaintiffs cross appeal from the court’s elimination of time spent in helping select a Monitor, from its reduction of time spent on the Supplemental Agreement, and from its reduction of hourly rates. I. Post-Judgment Monitoring Defendants’ position is that in a post-judgment context where a defendant-funded court monitor is created by the decree, the only way to avoid creating a state-funded, open-ended “sinecure for counsel” is “to compensate counsel only where a substantial issue arises as to the defendants’ obligations under the decree, and the work of plaintiffs’ counsel yields a resolution more favorable to the class than the defendants were prepared to concede.” They argue that such an extra burden is required to sift out progress or benefits flowing from the decree itself. They seek to distinguish Garrity v. Sununu, supra, on the ground that the instant case has in place a court Monitor, paid some $70,000 during the period at issue, whose presence presumably should have made unnecessary all time spent in routine monitoring. They argue alternatively that Garrity may need to be limited in light of Webb v. Board of Education of Dyer County, — U.S. —, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985), which held that there should be no 42 U.S.C. § 1988 fee award for work in optional ad-. ministrative proceedings unless it is “of a type ordinarily necessary” to advance the litigation. Id. 105 S.Ct. at 1929. We appreciate the fact that devising workable ways, fair to performer and pay- or, to compensate legal services during the formative period (following issuance of a complex system-creating decree and before satisfactory implementation becomes largely routine) is a difficult and sensitive task. The services are of lower profile and often of a more routinized nature than services preceding judgments. Missing the refining fire of the basic litigation, plaintiffs’ attorney may slip into a mode of spending too much time on too many matters, with the result that the decree institutionalizes the attorney, as well as the system. Defendants’ preferred standard, however, leaves us traumatized at the prospect of a multitude of trials — not necessarily mini-trials — on whether issue A, for which X hours are claimed, was really a “substantial” issue regarding a defendant’s obligations, and, if so, did plaintiffs’ work produce a more favorable resolution than defendants “were prepared to concede”. Must the result be measurably more favorable? How may one prove what defendants were prepared to concede, but did not? Such a standard implies the availability of appellate review of each issue, an addition to our domain that we would welcome with something less than unbridled enthusiasm. Moreover, as Amicus points out, defendants’ proposed standard would stimulate posturing and undercut the amicable cooperation that a consent decree is designed to foster; plaintiffs would opt for a combative, litigious route in preference to quiet negotiation. Whether we view the likely results in terms of delay, cost to the parties, inflated counsel fees, acrimony, or the additional burden on both the district court and the court of appeals, we see little to recommend the suggested innovation. Perhaps the most salient approach is to see if the normal method of determining fees for monitoring has broken down. We cannot say that it has in this case, because, while it was begun, it was never completed. Plaintiffs supplied their compendious fee application, which, while often not facially self-explanatory, contained the necessary keys to testing its reasonableness. Defendants generally knew the dates, subject matter, and people involved. They, at some expense to be sure, could have mounted challenges to specific claims — if not on a comprehensive basis, at least on a random one. Had this happened, the district court would have had the benefit of the adversary process and could have developed a sense of the extent to which the claim for services was reasonable. We recognize that a specific challenge to every item in a 3500-item catalogue of time charges would be impracticable, but it is not too much to expect the Commonwealth, relying on its deep involvement in the litigation, to target significant and vulnerable areas for testing. We would have confidence that, given reasonable assistance by counsel, a court could arrive at a fair decision without a dismaying investment of time, particularly during the later, “tapering off” stages of implementing a decree. This traditional approach not having been attempted, we are left with the general attack on the standard, together with the “Association issue”, infra. Without specific indicia of unreliability, we are left with more general indicators, which do not support the Commonwealth. We note first the consistency of the district court’s fee decision-making in this case with the approach taken in its earlier decision on the 1976-1981 applications. Second, we are mindful of the extensive forty-four percent reduction made in this case. Third, we do not think it excessive for attorney Schwartz to have spent about one-fourth of his time for two and one half years on this case (i.e., 1323 hours out of 5000), attorney Fleischner one eighth (i.e., 602 hours out of 5000), and paralegal Costanzo one eighth (i.e., 613 hours out of 5000). Fourth, we observe that the Commonwealth, when it perceives that matters have been sufficiently clarified and stabilized, may and indeed should petition the court to relieve it of the burden of paying for private party monitoring. Fifth, we note that plaintiffs will have waited from two to four years for their attorney’s fees. Finally, we are impressed by the fact that defendants have not been able to muster any authority for their proposition. Against the full array of authority for allowing fees for reasonable post-judgment monitoring, the defendants can say only that these decisions are “a series of ad hoc assessments of factual circumstances quite unlike those presented here.” As for their invocation of Webb v. Board of Education of Dyer County, — U.S. —, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985), as Amicus points out, its requirement that services (in an optional administrative proceeding) be “useful” and “ordinarily necessary” is fully consonant with our insistence in Garrity that services be “necessary for reasonable monitoring of a consent decree”. 752 F.2d at 738. And finally, defendants’ effort to justify departure from the Garrity standard where a court-appointed monitor is in place seems to us to have been adequately answered by the district court in its first fee opinion. We therefore hold that the district court properly rejected defendants’ plea to accept a different standard of proof for post-judgment monitoring. II. The Association Issue Plaintiffs’ fee application was filed on August 16, 1984. Oral argument was had on October 19, 1984. Shortly thereafter, a routine audit revealed that the Association, a group of state funded contractors providing services to plaintiffs under the consent decree, had entered into a retainer agreement with a charitable corporation staffed by plaintiffs’ counsel, the Center for Public Representation (“Center”). Under this agreement, the Center was obligated to provide fourteen hours of service a week to the Association, in return for which the Center received from each Association member one-third of one percent of its contract funding received from the Department of Mental Health. Between 1982 and 1984, the Association paid the Center $87,-468. Defendants moved to reopen the evidence and sought additional discovery on December 3, 1984 on the issues whether all of the time claimed was in reality for work done for plaintiffs and whether plaintiffs had already been compensated by the Association. Plaintiffs immediately moved to supplement their application and also opposed the motion to reopen, stating that the information as to compensation from the Association was irrelevant and that, in any event, they had now provided full information. Defendants countered with a proposal that the parties try to stipulate facts concerning the Center’s representation of the Association, failing which they would seek discovery. On December 13, 1984, the court allowed the defendants’ motion to reopen for purposes of receiving written briefs — within thirty days from defendants and sixty days from plaintiffs. It further stated that evidence on alleged conflicts of interest concerning payments of attorney’s fees “shall be brought forward to the Court Monitor and he shall conduct hearings on same and make recommendations to the Court.” On December 21, noting that the court had allowed the motion to reopen, defendants sought leave to file interrogatories requesting a list of all persons named in the fee application who were employees of a provider agency, and information concerning the make-up of the “Litigation Committee” mentioned in the retainer agreement, including whether it was the “Litigation Committee” referred to in various entries in the fee application. They also sought to telescope the time for responses so that they could incorporate them in their written brief. Plaintiffs opposed these requests, stating that the court had limited any reopening to written briefs. On January 4, 1985, the court denied leave to propound interrogatories, writing: “The Court did not intend that discovery should be reopened.” We have traced this bit of procedural history in detail because it plays a large role in shaping our decision. Defendants’ position is that case authorities such as our Palmigiano v. Garrahy, 616 F.2d 598 (1st Cir.1980), holding that the presence of financial support for a public interest legal services organization is irrelevant to the calculation of a reasonable fee under 42 U.S.C. § 1988, do not apply to the instant case where the Association’s retainer payments to the Center were for legal services rendered in the Association’s behalf and where the Association’s Litigation Committee has the power to determine the scope and type of work and legal positions to be taken by the Center. Defendants further point to specific portions of the record, which indicate to them that certain services were performed solely or dominantly for the Association (for example, meetings with the Litigation Committee and time recorded for conferring with employees of various providers). They also claim that their inability to probe further leaves an “irresolvable ambiguity” as to the object of counsels’ work, which justifies a fee reduction of between fifteen and twenty-five percent (i.e., between $20,000 and $33,000). Plaintiffs, on the other hand, claim that the principles of cases like Palmigiano govern, that the existence of additional sources of funding is irrelevant to the disposition of their fee application, that the overarching purpose of the Association, necessarily controlling its Litigation Committee, is the welfare of the plaintiff class, and that plaintiffs’ attorneys have often taken positions contrary to the interests of individual providers and have always accorded the plaintiff class their “exclusive and unconditional loyalty”. Most pertinently, they assert that their fee application includes no time spent for the Association on unrelated matters but only hours spent for the Association (50% of their total work for the Association) where the interests of the plaintiff class and the Association were identical. The district court, noting that the key question was whether the time claimed in the fee application was expended for the benefit of the plaintiff class, proceeded to rely “on the demonstrated integrity of plaintiffs’ counsel ... who have shown themselves to be extremely conscientious and honest attorneys”. The court stated that “[w]hen they represent to the Court that 50% of their Association hours were also for the benefit of the plaintiff class, quite frankly, the Court believes them. Defendants’ position that plaintiff’s hours must be reduced for this reason is, therefore, rejected.” Such a credibility judgment and exercise of discretion would normally be unexceptionable, particularly in attorney’s fee matters. But, as we earlier have signalled, the procedural history of this issue places the ruling in a different light. We have criticized defendants for not making discrete challenges to specific kinds of services performed or the time spent in performing them. But the issue of dual compensation and possibly divided loyalty did not arise until after the October 1984 hearing. Although plaintiffs’ attorneys cannot be criticized for any concealment of the retainer arrangement, it clearly was not known by these defendants or their counsel. The district court itself recognized the importance of the issue, but, when the issue arose, gave signals which were variously interpreted. Plaintiffs felt that only written briefs could address the issue; defendants felt that they were permitted to gather some facts. The court specifically allowed evidence on possible conflicts of interest to be submitted to the Court Monitor for his recommendations. Pour months later, the Monitor did recommend, following the joint agreement of the parties, that the retainer arrangement be terminated. This of course avoids recurrence of any problem but did not dissipate any cloud hovering over the instant fee application. We conclude that the district court should have allowed at least a limited discovery on this newly realized issue to test whether or not some of the time claimed was solely or principally in pursuit of Association purposes that were not coterminous with those of the plaintiff class. While our own impression of the time sheets is that plaintiffs’ attorneys pursued a generally scrupulous approach to conscientious reporting, a cursory scrutiny reveals some twenty-five hours recorded as being spent in meetings with the Litigation Committee. Plaintiffs’ attorney Schwartz, in an affidavit, stated: “As a practical matter, these communications [at meetings] were primarily for the purpose of my providing information to the Committee, and through them to the members, concerning the status of implementation of this Decree.” This indicates to us that the time spent in these meetings might well not have been spent for the principal benefit of the plaintiff class. Perhaps in the long run the class benefited, but, in view of the fact that defendants were precluded from any discovery or testing, the entries are sufficiently suspect, to warrant exclusion. Rather than remand these already prolonged proceedings for reconsideration by the district court, we think it both fair and appropriate to deduct from the award a sum roughly equal to twice the amount of the entries that appear suspect to us — $5,000. III. The Cross-Appeal Plaintiffs, regretfully, have engaged in three frivolous claims in their cross-appeal. Their fee application claimed hourly rates of $125 and $115 for court activities for their two attorneys and $115, $105, and $40 for decree implementation for their two attorneys and paralegal. The court, having allowed $80 an hour for court activities and $70 for decree implementation in 1982, increased the rates to $95 for court activities and $85 for implementation. Plaintiffs rely on their evidence of prevailing market rates in Springfield to urge that, as a matter of law, their evidence should carry the day. The legal work involved in this case was most intimately known by the district court; that the district court chose to increase fees by nineteen percent and no more was clearly within its discretion, especially in this advanced stage of implementation of the decree. Plaintiffs’ other two claims are that the court abused its discretion in excluding 64.7 hours of time spent (and consequently $12,629) in the search for a new court monitor and in excluding one-half of the 366 hours for what proved to be an unsuccessful attempt to negotiate a supplemental agreement. As to the former, the court acknowledged that the parties’ attorneys were to consult and advise, but noted that the choosing was the court’s responsibility. As to the latter, the court gently suggested that plaintiffs had “perhaps put in too much effort” on a supplemental agreement. Both judgment calls were clearly within the discretion of the court. Accordingly, the judgment below is reduced from $132,639.55 to $127,639.55 and, as reduced, is affirmed. The plaintiffs not having prevailed on part of the defendants’ appeal and having lost on their cross-appeal, it is the judgment of the court that the parties bear their own costs and that no counsel fees be awarded for the appeals. . We have had two prior occasions to address this litigation: Brewster v. Dukakis, 675 F.2d 1 (1st Cir.1982); Brewster v. Dukakis, 687 F.2d 495 (1st Cir.1982). . Brewster v. Dukakis, 544 F.Supp. 1069 (D.Mass.1982). . The six kinds of work were as follows: court hearings, papers, and negotiations; work in connection with a Supplemental Agreement; decree implementation and monitoring — meetings, communications, and drafting; general— telephone calls, correspondence, and meetings not included in prior categories; work in connection with attorney fees; travel. . See Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir.1984); Burke v. Guiney, 700 F.2d 767, 771 (1st Cir.1983); Wuori v. Concannon, 551 F.Supp. 185, 190-191 (D.Me.1982) (court monitor in existence); New York Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1145 (2d Cir.1983); Delaware Valley Citizens' Council for Clean Air v. Commonwealth, 762 F.2d 272, 276 (3d Cir.1985); Willie M. v. Hunt, 732 F.2d 383, 387 (4th Cir.1984); Miller v. Carson, 628 F.2d 346, 348 (5th Cir.1980); Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir.1979); Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir.1980); Rutherford v. Pitchess, 713 F.2d 1416, 1421 (9th Cir.1983); Williams v. City of Fairburn, 702 F.2d 973, 976-77 (11th Cir.1983). . “Despite the use of the term ‘monitoring’ the activities of plaintiffs’ counsel have not duplicated those of the court-appointed Monitor. The Monitor evaluates services under the Decree, resolves minor disputes, attempts to mediate major disputes, makes suggestions for implementation and submits reports to the Court. He does not have direct responsibility for insuring implementation of the Decree or advocating on behalf of plaintiff class members.” Brewster, supra, 544 F.Supp. at 1079 n. 6. Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case? A. No B. Yes C. Not ascertained Answer:
songer_geniss	G	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Leonard J. McMULLEN, Appellant, v. Anthony J. CELEBREZZE, Secretary, Health, Education and Welfare, Appellee. No. 19139. United States Court of Appeals Ninth Circuit. Aug. 18, 1964. Rehearing Denied Nov. 20, 1964. Leonard J. McMullen, in pro. per. Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section; James E. Biava, Asst. U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS and KOELSCH, Circuit Judges, and JAMESON, District Judge. JAMESON, District Judge: This is an appeal from a judgment affirming the final decision of the appellee disallowing appellant’s claim for disability and for disability insurance benefits. Appellant represented himself in this court, as he did in the district court and in all proceedings before the Department of Health, Education and Welfare. This court has jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. Appellant filed an application on December 13, 1961, 2for insurance benefits, alleging that he had been continuously disabled under the provisions of the Social Security Act since April 12, 1949. Appellant claims to be entitled to disability benefits to February 5,1962, when he became 65 years of age, and to old-age pension benefits thereafter. Following a denial of his claim, a hearing was held on December 6, 1962. The hearing examiner found that the claimant had not sustained his burden of showing that he was “disabled” within the meaning of the Social Security Act and that he was not accordingly entitled to a period of disability or to disability insurance benefits. This decision became the final decision of the Secretary when the Appeals Council denied review on May 2, 1963. In a memorandum opinion the district court denied appellant’s motion for judgment on the pleadings and granted appel-lee’s motion for summary judgment. Thereafter the court adopted findings of fact and concluded as a matter of law that the final decision of the Secretary and the findings of fact upon which it was predicated were supported by substantial evidence, were conclusive and thus were approved and affirmed. A formal judgment was entered affirming the final decision of the Secretary. Appellant questions the propriety of the summary judgment motion and proceedings. Section 405(g) gives the district court the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, * * * ”, and provides that, “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * * ”. The action accordingly is a “review” of the decision of the Secretary. A motion for summary judgment is unnecessary, and it is questionable whether such a motion is contemplated by the statute. This procedure, however, is commonly followed by the Secretary in eases of this nature. In any event, there was a full compliance with the statute in the findings of fact, conclusions of law, and judgment entered by the district court. As this court said in United States v. Lalone, 9 Cir., 1945, 152 F.2d 43, “Under this section of the Social Security Act (42 U.S.C. § 405(g)) providing for appeals from an administrative board, as under other similar acts, the board’s findings of fact must be sustained if the court finds they are supported by substantial evidence. This same finality extends to the Board’s inferences and conclusions from the evidence if a substantial basis is found for them. * * * The board’s decisions interpreting the Act and regulations are entitled to weight; the board’s findings of fact, if supported by substantial evidence, are conclusive.” The primary question for determination is whether there is substantial evidence to support the findings of the Secretary and the district court that appellant failed to sustain his burden of showing that he was “disabled” within the meaning of the Social Security Act on or before December 31, 1951, the last date of his insured status under the Act, and continuously thereafter to December 13, 1961, when his present application was filed. The test of “disability” is whether appellant was unable during that period “to engage in any substantial gainful activity by reason of any medi-eally determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration”, or “blindness”, (See note 2.) Appellant graduated from high school and in 1919 completed a ten month course jn general accounting at a business col-iege. He was steadily employed in accounting work by one company between 1919 and January 1946 — at Fort Wayne, Indiana, from 1919 to 1928, at Vernon, California, from 1928 to 1945, and at Fort Wayne for four or five months in 1945 and January, 1946. He resigned because he couldn’t “stand the cold weather” in Fort Wayne and returned to California. He held a series of jobs be-tween 1946 and 1948, when he engaged in a primary campaign as a candidate for Congress. Subsequent to the onset of the alleged disability in April, 1949, appellant worked in December, 1949, as a post office clerk; from May through July, 1951, as a COst accountant and timekeeper; in October, 1951, as a timekeeper; and in January and February, 1952, as a senior deputy assessor. Appellant testified that for “a while” after December, 1951, he went to the library “quite a lot” to read fiancial reports and magazines in conneetion with making investments; that he attempted to collect benefits from two insurance companies, acting as his own attorney in these cases, which were filed in 1956. In 1952 he engaged in a primary campaign as a candidate for Los Angeles County Supervisor, and in 1954 he again campaigned for Congress in the primary election. Appellant asserts that although he engaged in the foregoing activities, he did so while disabled. In his application for a period of disability and disability benefits appellant described his impairment as “injury of prostate gland, causing feet and leg swelling and severe pain.” At his hearing he testified that he had been unable to do auditing or accounting work because of his eyes, his right eye being “practically blind”. In appellant’s brief he refers specifically to a deposition of Dr. Aubrey H. Williams, given on February 18, 1957, in an action by appellant against an insurance company. Dr. Williams, a specialist in internal medicine, also made an affidavit dated November 23, 1956, and a report dated April 23,1957. All relate to an examination of appellant on May 20 to 22, 1949. Dr. Williams testified in his deposition that a proctoscopic examination revealed no abnormalities except a slight spasm in the rectum which he attributed to nervous tension. He found a slight enlargement of the prostate which was a normal development with age. He found no evidence of physical disease “which would interfere with him carrying on his usual occupation; emotionally he was so upset that for the time being he may not have been able to perform”. It was Dr. Williams’ opinion that appellant’s emotional state was probably of long standing, perhaps throughout his lifetime. His final diagnosis was obesity and “psychoneurosis mixed with superimposed acute anxiety with hypochondri-acal and paranoid features”. He did not believe this condition was in any way connected with any physical disability. In the report, in response to the question, “Have you advised applicant not to work?”, Dr. Williams answered, “No’. Dr. John V. Pollock examined appellant on July 31, 1950. Appellant complained of urinary frequency, nocturia, impotence, and grittiness in his eyes. The physieal examination revealed that the left prostatic lobe was enlarged and mildly tender, and that the left vesicle was enlarged. Urological consultation and blood chemistry were advised, Appellant was next seen by Dr. Pollock on July 24, 1953, when appellant called for an eye check. The eye examination showed corrected vision of 20/40 in the right eye and 20/30 in the left eye. Appellant was “approved for light duties”, Dr. Warren A. Wilson, an ophthalmologist, examined appellant’s eyes on July io, 1956. Appellant complained that “both eyes were tearing but it was more marked on the right”. Dr. Wilson’s diagnosis was chronic blepharoconjunc-tivitis (inflammation of the eyelids and conjunctiva). He prescribed treatment and felt that appellant would have remissions and exacerbations of this condition. Dr. Wilson did not advise appellant not to work. The only other medical report is that of a physician who examined appellant for the Veterans Administration on April 19, 1949. The examination revealed “a very boggy prostate”, and a smear showed “many pus cells”. The diagnosis was “prostatitis chronic”, and hospitalization was not recommended, There is no substantial medical testimony to support appellant’s contention that he was disabled within the meaning 0f Social Security Act as a result of either the prostate or eye conditions, Under the Act disability may re-suit from mental as well as physical impairment. In his examination in May, 1949, Dr. Williams found a “psychoneurosis mixed with superimposed acute anxiety with hypochondriacal and paranoid features.” He recommended psychiatric consultation. The regulations relating to disability caused by mental impairment provide: “In determining the effect of psychoneuroses, consideration is given whether the psychoneurosis has re-suited in severe social, personal and occupational regression or confinement to a mental hospital and whether it persists despite appropriate treatment. The manifestations of tension, anxiety, depression or psy-chophysiological disturbances, behavioral disturbances, hysterical reactions or obsessive compulsive patterns should be carefully described. An adequate psychiatric examination is generally necessary.” (20 C.F.R. § 404.1519(c) (ii)). With reference to possible mental impairment, the Hearing Examiner’s Decision reads in part: “In respect to his mental state, the claimant has on many occasions been requested to submit to psychiatric examination, but has consistently refused to do so, wishing to rely upon his physical impairments to obtain the various benefits he has sought. The opinion expressed by Dr. Williams in his deposition was that the claimant’s emotional state might keep him temporarily from working, but it is obvious in his answers to the questions in such deposition that he did not feel that it was of such continuing severity as to be of long-continued duration, particularly if appropriate therapy were employed. “ * * * There is not in the record a definitive description of the various manifestations of the psychoneurosis, from which Dr. Williams diagnosed the claimant as suffering. In fact through the years, the claimant has resisted all attempts to have him examined psy-chiatrically, and has left the record void of the type of evidence contemplated by this regulation.” We agree with the agency decision and the district court that the record would not support a finding of disability on the ground of mental impairment. It is true, as appellant contends, that complete helplessness is not necessary to a finding of an allowable disability, that a claimant’s age, training and experience must be considered in determining what opportunities are open to him, and that sporadic and infrequent activities do not necessarily establish ability to engage in substantial gainful employment. Here, however, the Board could properly find that the prostate condition upon which appellant initially relied as the basis of his disability was “not shown to be so severe as to limit him in performing his usual sedentary occupation.” Under both the testimony regarding appellant’s activities and the medical testimony, the Secretary could also properly find that appellant had failed to establish a continuing disability within the meaning of the Act as a result of either his eye condition or psychoneurosis. Relying upon King v. Flemming, 6 Cir. 1961, 289 F.2d 808 and cases there cited, appellant contends that there should have been an express finding with respect to what he could do and what employment opportunities were open to him. It is implicit in the Board’s decision that it found that appellant had failed to show that he was disabled from following his usual occupation as an accountant. No useful purpose would be served by a discussion of the many cases cited by appellant. We have examined all of those cases where an agency finding was reversed. All of them are factually distinguishable. The judgment is affirmed. . In a previous claim filed on February 15, 1957, appellant sought to establish disability as of April 12, 1949. This claim was denied, and the denial was affirmed by final decision of a hearing examiner dated April 8, 1958. Appellant’s action for a review of that decision was dismissed on the ground that it was not timely filed. . The term “disability” is defined as “ * * * (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, or (B) blindness; and the term ‘blindness’ means central visual acuity of 5/200 or less in the better eye with the use of a correcting lens. * * * ” (42 U.S.C. § 416(i) (1)). . The Hearing Examiner’s Decision recites that appellant appeared to be entitled to the regular old-age pension starting February 5, 1962, except for the fact that he had not filed formal application as required by the Act and regulations. The right to old-age pension benefits was not determined by the district court and is not before this court. . This does not mean that it was intended that the courts should abdicate their conventional juricial function to review (Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456); and where the “administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented” (Jacobson v. Folsom, S.D.N.Y. 1957, 158 F.Supp. 281, 285), or applies an arbitrary standard (Flemming v. Lindgren, 9 Cir.1960, 275 F.2d 596, 597), the court may properly reject the agency’s decision, . Under the express terms of the Act a reasonable showing of permanence of the disability is required. Bradey v. Ribicoff, 4 Cir. 1962, 298 F.2d 855. . These findings are required when it is found that the claimant is unable to engage in bis usual occupation, but the Secretary concludes that lie can perform services and duties other than those of his accustomed occupation. See Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916, and Hall v. Flemming, 6 Cir., 1961, 289 F.2d 290. 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_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. PACE COMPANY, Division of AMBAC Industries, Plaintiff-Appellee, v. Stanley RESOR, Secretary of the Army, et al., Defendant-Appellant. PACE COMPANY, Division of AMBAC Industries, Plaintiff-Appellee, v. MAXSON ELECTRONICS CORPORATION, Intervenor-Defendant-Appellant. Nos. 71-1974, 71-1975. United States Court of Appeals, Sixth Circuit. Dec. 9, 1971. Certiorari Denied March 6, 1972. See 92 S.Ct. 1192. Robert E. Kopp, Dept. of Justice, Washington, D. C., for Stanley Resor, and others; L. Patrick Gray, III, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., on motion for summary reversal or for stay pending appeal. Robert L. Ackerly, Washington, D. C., for Maxson Electronics Corp.; Sellers, Connor & Cuneo, Washington, D. C., on motion for summary reversal or for stay pending appeal. Charles M. Crump, Memphis, Tenn., for plaintiff-appellee; Apperson, Crump, Duzane & Maxwell, Memphis, Tenn., on memorandum in opposition to motion for summary reversal or for stay pending appeal; Vincent J. O’Reilly, Donald V. Bakeman, Carle Place, N. Y., Allen T. Malone, Memphis, Tenn., of counsel. Before PHILLIPS, Chief Judge, and McCREE and KENT, Circuit Judges. PER CURIAM. This is an appeal from orders of the District Court granting and refusing to vacate or stay a preliminary injunction restraining the defendant-appellant from awarding a contract to the intervenor-defendant-appellant pursuant to an invitation for bids to furnish a quantity of 81MM shells for delivery to the United States Army in Vietnam. We need not and do not reach the issue of whether the District Court had jurisdiction to issue the injunction pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. § 706, at the request of plaintiff-appellee gs a disappointed bidder. See Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); M. Steinthal & Co. v. Seamans, 455 F.2d 1289 (D.C.Cir. 1971). Neither do we reach the issue as to whether the granting of the injunction was a proper exercise of the discretion of the trial court. We do not reach these issues because we conclude that the District Court abused its discretion in not vacating the injunction upon the representation by the Secretary of the Army that the National welfare will be materially affected by the injunction. On the basis of the affidavits on file we find the National interest to be of such overriding importance as to render the failure to vacate the injunction an abuse of discretion. We have not been cited any authority in which any Court of the United States has enjoined the acquisition of munitions after a responsible officer has certified such munitions as necessary for support of troops engaged in military operations. The cause is remanded to the District Court with instructions to vacate the injunction. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_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. UNITED STATES v. TOPCO ASSOCIATES, INC. No. 70-82. Argued November 16, 1971 Decided March 29, 1972 Marshall, J., delivered the opinion of the Court, in which Douglas, BrenNan, Stewart, and White, JJ., joined. Blacemun, J., filed an opinion concurring in the result, post, p. 612. Burger, C. J., filed a dissenting opinion, post, p. 613. Powell and Rehjst-quist, JJ., took no part in the consideration or decision of the case. Howard E. Shapiro argued the cause for the United States. With him on the briefs were Solicitor General Griswold and Deputy Assistant Attorney General Comegys. Victor E. Grimm argued the cause for appellee. With him on the brief were John T. Loughlin and William R. Carney. Mr. Justice Marshall delivered the opinion of the Court. The United States brought this action for injunctive relief against alleged violation by Topeo Associates, Inc. (Topeo), of § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1. Jurisdiction was grounded in § 4 of the Act, 15 U. S. C. § 4. Following a trial on the merits, the United States District Court for the Northern District of Illinois entered judgment for Topeo, 319 F. Supp. 1031, and the United States appealed directly to this Court pursuant to § 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U. S. C. § 29. We noted probable jurisdiction, 402 U. S. 905 (1971), and we now reverse the judgment of the District Court. I Topeo is a cooperative association of approximately 25 small and medium-sized regional supermarket chains that operate stores in some 33 States. Each of the member chains operates independently; there is no pooling of earnings, profits, capital, management, or advertising resources. No grocery business is conducted under the Topeo name. Its basic function is to serve as a purchasing agent for its members. In this capacity, it procures and distributes to the members more than 1,000 different food and related nonfood items, most of which are distributed under brand names owned by Topeo. The association does not itself own any manufacturing, processing, or warehousing facilities, and the items that it procures for members are usually shipped directly from the packer or manufacturer to the members. Payment is made either to Topeo or directly to the manufacturer at a cost that is virtually the same for the members as for Topeo itself. All of the stock in Topeo is owned by the members, with the common stock, the only stock having voting rights, being equally distributed. The board of directors, which controls the operation of the association, is drawn from the members and is normally composed of high-ranking executive officers of member chains. It is the board that elects the association’s officers and appoints committee members, and it is from the board that the principal executive officers of Topeo must be drawn. Restrictions on the alienation of stock and the procedure for selecting all important officials of the association from within the ranks of its members give the members complete and unfettered control over the operations of the association. Topeo was founded in the 1940’s by a group of small, local grocery chains, independently owned and operated, that desired to cooperate to obtain high quality merchandise under private labels in order to compete more effectively with larger national and regional chains. With a line of canned, dairy, and other products, the association began. It added frozen foods in 1950, fresh produce in 1958, more general merchandise equipment and supplies in 1960, and a branded bacon and carcass beef selection program in 1966. By 1964, Topeo’s members had combined retail sales of more than $2 billion; by 1967, their sales totaled more than $2.3 billion, a figure exceeded by only three national grocery chains. Members of the association vary in the degree of market share that they possess in their respective areas. The range is from 1.5% to 16%, with the average being approximately 6%. While it is difficult to compare these figures with the market shares of larger regional and national chains because of the absence in the record of accurate statistics for these chains, there is much evidence in the record that Topeo members are frequently in as strong a competitive position in their respective areas as any other chain. The strength of this competitive position is due, in some measure, to the success of Topco-brand products. Although only 10% of the total goods sold by Topeo members bear the association’s brand names, the profit on these goods is substantial and their very existence has improved the competitive potential of Topeo members with respect to other large and powerful chains. It is apparent that from meager beginnings approximately a quarter of a century ago, Topeo has developed into a purchasing association wholly owned and operated by member chains, which possess much economic muscle, individually as well as cooperatively. II Section 1 of the Sherman Act provides, in relevant part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal . . . The United States charged that, beginning at least as early as 1960 and continuing up to the time that the complaint was filed, Topeo had combined and conspired with its members to violate § 1 in two respects. First, the Government alleged that there existed: “a continuing agreement, understanding and concert of action among the co-conspirator member firms acting through Topeo, the substantial terms of which have been and are that each co-conspirator member firm will sell Topco-controlled brands only within the marketing territory allocated to it, and will refrain from selling Topco-controlled brands outside such marketing territory.” The division of marketing territories to which the complaint refers consists of a number of practices by the association. Article IX, § 2, of the Topeo bylaws establishes three categories of territorial licenses that members may secure from the association: “(a) Exclusive — An exclusive territory is one in which the member is licensed to sell all products bearing specified trademarks of the Association, to the exclusion of all other persons. “(b) Non-exclusive — A non-exclusive territory is one in which a member is licensed to sell all products bearing specified trademarks of the Association, but not to the exclusion of others who may also be licensed to sell products bearing the same trademarks of the Association in the same territory. “(c) Coextensive — A coextensive territory is one in which two (2) or more members are licensed to sell all products bearing specified trademarks of the Association to the exclusion of all other persons. . . When applying for membership, a chain must designate the type of license that it desires. Membership must first be approved by the board of directors, and thereafter by an affirmative vote of 75% of the association’s members. If, however, the member whose operations are closest to those of the applicant, or any member whose operations are located within 100 miles of the applicant, votes against approval, an affirmative vote of 85%' of the members is required for approval. Bylaws, Art. I, § 5. Because, as indicated by the record, members cooperate in accommodating each other’s wishes, the procedure for approval provides, in essence, that members have a veto of sorts over actual or potential competition in the territorial areas in which they are concerned. Following approval, each new member signs an agreement with Topeo designating the territory in which that member may sell Topco-brand products. No member may sell these products outside the territory in which it is licensed. Most licenses are exclusive, and even those denominated “coextensive” or “non-exclusive” prove to be de facto exclusive. Exclusive territorial areas are often allocated to members who do no actual business in those areas on the theory that they may wish to expand at some indefinite future time and that expansion would likely be in the direction of the allocated territory. When combined with each member’s veto power over new members, provisions for exclusivity work effectively to insulate members from competition in Topco-brand goods. Should a member violate its license agreement and sell in areas other than those in which it is licensed, its membership can be terminated under Art. IV, §§ 2 (a) and 2 (b) of the bylaws. Once a territory is classified as exclusive, either formally or de facto, it is extremely unlikely that the classification will ever be changed. See Bylaws, Art. IX. The Government maintains that this scheme of dividing markets violates the Sherman Act because it operates to prohibit competition in Topco-brand products among grocery chains engaged in retail operations. The Government also makes a subsidiary challenge to Topco’s practices regarding licensing members to sell at wholesale. Under the bylaws, members are not permitted to sell any products supplied by the association at wholesale, whether trademarked or not, without first applying for and receiving special permission from the association to do so. Before permission is granted, other licensees (usually retailers), whose interests may potentially be affected by wholesale operations, are consulted as to their wishes in the matter. If permission is obtained, the member must agree to restrict the sale of Topeo products to a specific geographic area and to sell under any conditions imposed by the association. Permission to wholesale has often been sought by members, only to be denied by the association. The Government contends that this amounts not only to a territorial restriction violative of the Sherman Act, but also to a restriction on customers that in itself is vio-lative of the Act. Prom the inception of this lawsuit, Topeo accepted as true most of the Government’s allegations regarding territorial divisions and restrictions on wholesaling, although it differed greatly with the Government on the conclusions, both factual and legal, to be drawn from these facts. Topco’s answer to the complaint is illustrative of its posture in the District Court and before this Court: “Private label merchandising is a way of economic life in the food retailing industry, and exclusivity is the essence of a private label program; without exclusivity, a private label would not be private. Each national and large regional chain has its own exclusive private label products in addition to the nationally advertised brands which all chains sell. Each such chain relies upon the exclusivity of its own private label line to differentiate its private label products from those of its competitors and to attract and retain the repeat business and loyalty of consumers. Smaller retail grocery stores and chains are unable to compete effectively with the national and large regional chains without also offering their own exclusive private label products. “The only feasible method by which Topeo can procure private label products and assure the exclusivity thereof is through trademark licenses specifying the territory in which each member may sell such trademarked products.” Answer, App. 11. Topeo essentially maintains that it needs territorial divisions to compete with larger chains; that the association could not exist if the territorial divisions were anything but exclusive; and that by restricting competition in the sale of Topco-brand goods, the association actually increases competition by enabling its members to compete successfully with larger regional and national chains. The District Court, considering all these things relevant to its decision, agreed with Topeo. It recognized that the panoply of restraints that Topeo imposed on its members worked to prevent competition in Topco-brand products, but concluded that “[w]hatever anti-competitive effect these practices may have on competition in the sale of Topeo private label brands is far outweighed by the increased ability of Topeo members to compete both with the national chains and other supermarkets operating in their respective territories.” 319 F. Supp. 1031, 1043 (1970). The court held that Topco's practices were procompeti-tive and, therefore, consistent with the purposes of the antitrust laws. But we conclude that the District Court used an improper analysis in reaching its result. Ill On its face, § 1 of the Sherman Act appears to bar any combination of entrepreneurs so long as it is “in restraint of trade.” Theoretically, all manufacturers, distributors, merchants, sellers, and buyers could be considered as potential competitors of each other. Were § 1 to be read in the narrowest possible way, any commercial contract could be deemed to violate it. Chicago Board of Trade v. United States, 246 U. S. 231, 238 (1918) (Brandéis, J.). The history underlying the formulation of the antitrust laws led this Court to conclude, however, that Congress did not intend to prohibit all contracts, nor even all contracts that might in some insignificant degree or attenuated sense restrain trade or competition. In lieu of the narrowest possible reading of § 1, the Court adopted a “rule of reason” analysis for determining whether most business combinations or contracts violate the prohibitions of the Sherman Act. Standard Oil Co. v. United States, 221 U. S. 1 (1911). An analysis of the reasonableness of particular restraints includes consideration of the facts peculiar to the business in which the restraint is applied, the nature of the restraint and its effects, and the history of the restraint and the reasons for its adoption. Chicago Board of Trade v. United States, supra, at 238. While the Court has utilized the “rule of reason” in evaluating the legality of most restraints alleged to be violative of the Sherman Act, it has also developed the doctrine that certain business relationships are per se violations of the Act without regard to a consideration of their reasonableness. In Northern Pacific R. Co. v. United States, 356 U. S. 1, 5 (1958), Mr. Justice Black explained the appropriateness of, and the need for, per se rules: “[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. This principle of per se unreasonableness not only makes the type of restraints which are proscribed by the Sherman Act more certain to the benefit of everyone concerned, but it also avoids the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable — an inquiry so often wholly fruitless when undertaken.” It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act. See generally Van Cise, The Future of Per Se in Antitrust Law, 50 Va. L. Rev. 1165 (1964). One of the classic examples of a per se violation of § 1 is an agreement between competitors at the same level of the market structure to allocate territories in order to minimize competition. Such concerted action is usually termed a .“horizontal” restraint, in contradistinction to combinations of persons at different!' levels of the market structure, e. g,, manufacturers and I distributors, which are termed “vertical” restraints. This i¡ Court has reiterated time and time again that “[h]orizontal territorial limitations . . . are naked restraints off! trade with no purpose except stifling of competition .’’ White Motor Co. v. United States, 372 U. S. 253, 263 (1963). Such limitations are per se violations of the Sherman Act. See Addyston Pipe & Steel Co. v. United States, 175 U. S. 211 (1899), aff’g 85 F. 271 (CA6 1898) (Taft, J.); United States v. National Lead Co., 332 U. S. 319 (1947); Timken Roller Bearing Co. v. United States, 341 U. S. 593 (1951); Northern Pacific R. Co. v. United States, supra; Citizen Publishing Co. v. United States, 394 U. S. 131 (1969); United States v. Sealy, Inc., 388 U. S. 350 (1967); United States v. Arnold, Schwinn & Co., 388 U. S. 365, 390 (1967) (Stewart, J., concurring in part and dissenting in part); Serta Associates, Inc. v. United States, 393 U. S. 534 (1969), aff’g 296 F. Supp. 1121, 1128 (ND Ill. 1968). We think that it is clear that the restraint in this case is a horizontal one, and, therefore, a per se violation of § 1. The District Court failed to make any determination as to whether there were per se horizontal territorial restraints in this case and simply applied a rule of reason in reaching its conclusions that the restraints were not illegal. See, e. g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L. Rev. 457, 469 (1971). In so doing, the District Court erred. United States v. Sealy, Inc., supra, is, in fact, on all fours with this case. Sealy licensed manufacturers of mattresses and bedding to make and sell products using the Sealy trademark. Like Topeo, Sealy was a corporation owned almost entirely by its licensees, who elected the Board of Directors and controlled the business. Just as in this case, Sealy agreed with the licensees not to license other manufacturers or sellers to sell Sealy-brand products in a designated territory in exchange for the promise of the licensee who sold in that territory not to expand its sales beyond the area demarcated by Sealy. The Court held that this was a horizontal territorial restraint, which was per se violative of the Sherman Act. Whether or not we would decide this case the same way under the rule of reason used by the District Court is irrelevant to the issue before us. The fact is that courts are of limited utility in examining difficult economic problems. Our inability to weigh, in any meaningful sense, destruction of competition in one sector of the economy against promotion of competition in another sector is one important reason we have formulated per se rules. In applying these rigid rules, the Court has consistently rejected the notion that naked restraints of trade are to be tolerated because they are well intended or because they are allegedly developed to increase competition. E. g., United States v. General Motors Corp., 384 U. S. 127, 146-147 (1966); United States v. Masonite Corp., 316 U. S. 265 (1942); Fashion Originators’ Guild v. FTC, 312 U. S. 467 (1941). Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete— to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster. Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy. Cf. United States v. Philadelphia National Bank, 374 U. S. 321, 371 (1963). The District Court determined that by limiting the freedom of its individual members to compete with each other, Topeo was doing a greater good by fostering competition between members and other large supermarket chains. But, the fallacy in this is that Topeo has no authority under the Sherman Act to determine the respective values of competition in various sectors of the economy. On the contrary, the Sherman Act gives to each Topeo member and to each prospective member the right to ascertain for itself whether or not competition with other supermarket chains is more desirable than competition in the sale of Topco-brand products. Without territorial restrictions, Topeo members may indeed: “[cut] each other’s throats.” Cf. White Motor Co., supra, at 278 (Clark, J., dissenting). But, we have never found this possibility sufficient to warrant condoning horizontal restraints of trade. The Court has previously noted with respect to price fixing, another per se violation of the Sherman Act, that: “The reasonable price fixed today may through economic and business changes become the unreasonable price of tomorrow. Once established, it may be maintained unchanged because of the absence of competition secured by the agreement for a price reasonable when fixed.” United States v. Trenton Potteries Co., 273 U. S. 392, 397 (1927). A similar observation can be made with regard to territorial limitations. White Motor Co., supra, at 265 n. 2 (Brennan, J., concurring). There have been tremendous departures from the notion of a free-enterprise system as it was originally conceived in this country. These departures have been the product of congressional action and the will of the people. If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion, this too is a decision that must be made by Congress and not by private forces or by the courts. Private forces are too keenly aware of their own interests in making such decisions and courts are ill-equipped and ill-situated for such decisionmaking. To analyze, interpret, and evaluate the myriad of competing interests and the endless data that would surely be brought to bear on such decisions, and to make the delicate judgment on the relative values to society of competitive areas of the economy, the judgment of the elected representatives of the people is required. Just as the territorial restrictions on retailing Topco-brand products must fall, so must the territorial restrictions on wholesaling. The considerations are the same, and the Sherman Act requires identical results. We also strike down Topco’s other restrictions on the right of its members to wholesale goods. These restrictions amount to regulation of the customers to whom members of Topeo may sell Topco-brand goods. Like territorial restrictions, limitations on customers are intended to limit intra-brand competition and to promote inter-brand competition. For the reasons previously discussed, the arena in which Topeo members compete must be left to their unfettered choice absent a contrary congressional determination. United States v. General Motors Corp., supra; cf. United States v. Arnold, Schwinn & Co., supra; United States v. Masonite Corp., supra; United States v. Trenton Potteries, supra. See also, White Motor Co., supra, at 281-283 (Clark, J., dissenting). We reverse the judgment of the District Court and remand the case for entry of an appropriate decree. It is so ordered. Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case. Topeo, which is referred to at times in this opinion as the "association,” is actually composed of 23 chains of supermarket retailers and two retailer-owned cooperative wholesalers. In addition to purchasing various items for its members, Topeo performs other related functions: e. g., it insures that there is adequate quality control on the products that it purchases; it assists members in developing specifications on certain types of products (e. g., equipment and supplies); and it also aids the members in purchasing goods through other sources. The founding members of Topeo were having difficulty competing with larger chains. This difficulty was attributable in some degree to the fact that the larger chains were capable of developing their own private-label programs. Private-label products differ from other brand-name products in that they are sold at a limited number of easily ascertainable stores. A&P, for example, was a pioneer in developing a series of products that were sold under an A&P label and that were only available in A&P stores. It is obvious that by using private-label products, a chain can achieve significant cost economies in purchasing, transportation, warehousing, promotion, and advertising. These economies may afford the chain opportunities for offering private-label products at lower prices than other brand-name products. This, in turn, provides many advantages of which some of the more important are: a store can offer national-brand products at the same price as other stores, while simultaneously offering a desirable, lower priced alternative; or, if the profit margin is sufficiently high on private-brand goods, national-brand products may be sold at reduced price. Other advantages include: enabling a chain to bargain more favorably with national-brand manufacturers by creating a broader supply base of manufacturers, thereby decreasing dependence on a few, large national-brand manufacturers; enabling a chain to create a “price-mix” whereby prices on special items can be lowered to attract customers while profits are maintained on other items; and creation of general goodwill by offering lower priced, higher quality goods. The three largest chains are A&P, Safeway, and Kroger. Topeo was named in the complaint as the sole defendant, but the complaint clearly charged that its members, while not defendants, were coconspirators in Topco’s violation of the Sherman Act. Article IX, § 8, of the bylaws provides, in relevant part: “Unless a member’s membership and licensing agreement provides that such member may sell at wholesale, a member may not wholesale products supplied by the Association. If a membership and licensing agreement permits a member to sell at wholesale, such member shall control the resale of products bearing trademarks of the Association so that such sales are confined to the territories granted to the member, and the method of selling shall conform in all respects with the Association’s policies.” Shortly before trial, Topeo amended this bylaw with an addition that permitted any member to wholesale in the exclusive territories in which it retailed. But the restriction remained the same in all other cases. It is apparent that this bylaw on its face applies whether or not the products sold are trademarked by Topeo. Despite the fact that Topco’s general manager testified at trial that, in practice, the restriction is confined to Topco-branded products, the District Court found that the bylaw is applied as written. We find nothing clearly erroneous in this finding. Assuming, arguendo, however, that the restriction is confined to products trademarked by Topeo, the result in this ease would not change. When the Government first raised this point in the District Court, Topeo objected on the ground that it was at variance with the charge in the complaint. The District Court apparently agreed with Topeo that the complaint did not cover customer limitations, but permitted the Government to pursue this line on the basis that if the limitations were proved, the complaint could later be amended. App. 141. Topeo acquiesced in this procedure, and both sides dealt with customer limitations in examining witnesses. The District Court made specific findings and conclusions with respect to the totality of the restraints on wholesaling. In light of these facts, the additional fact that the complaint was never formally amended should not bar our consideration of the issue. The District Court recognized that “[t]he government has introduced evidence indicating that some applications by Topeo members to expand into territories assigned to other members have been denied,” 319 F. Supp. 1031, 1042, but concluded that these decisions by Topeo did not have an appreciable influence on the decision of members as to whether or not to expand. Topeo expands on this conclusion in its brief by asserting that “the evidence is uneontra-dicted that a member has never failed to build a new store because it was unable to obtain a license.” Brief for Appellee 18 n. 18. The problem with the conclusion of the District Court and the assertion by Topeo is that they are wholly inconsistent with the notion that territorial divisions are crucial to the existence of Topeo, as urged by the association and found by the District Court. From the filing of its answer to the argument before this Court, Topeo has maintained that without a guarantee of an exclusive territory, prospective licensees would not join Topeo and present licensees would leave the association. It is difficult to understand how Topeo can make this argument and simultaneously urge that territorial restrictions are an unimportant factor in the decision of a member on whether to expand its business. It is true that in Sealy the Court dealt with price fixing as well as territorial restrictions. To the extent that Sealy casts doubt on whether horizontal territorial limitations, unaccompanied by price fixing, are per se violations of the Sherman Act, we remove that doubt today. There has been much recent commentary on the wisdom of per se rules. See, e. g., Comment, Horizontal Territorial Restraints and the Per Se Rule, 28 Wash. & Lee L. Rev. 457 (1971); Averill, Sealy, Schwinn and Sherman One: An Analysis and Prognosis, 15 N. Y. L. F. 39 (1969); Note, Selected Antitrust Problems of the Franchisor: Exclusive Arrangements, Territorial Restrictions, and Franchise Termination, 22 U. Fla. L. Rev. 260, 286 (1969); Sadd, Antitrust Symposium: Territorial and Customer Restrictions After Sealy and Schwinn, 38 U. Cin. L. Rev. 249, 252-253 (1969); Bork, The Rule of Reason and the Per Se Concept, pt. 1, Price Fixing and Market Division, 74 Yale L. J. 775 (1965). Without the per se rules, businessmen would be left with little to aid them in predicting in any particular case what courts will find to be legal and illegal under the Sherman Act. Should Congress ultimately determine that predictability is unimportant in this area of the law, it can, of course, make -per se rules inapplicable in some or all cases, and leave courts free to ramble through the wilds of economic theory in order to maintain a flexible approach. 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_casetyp1_7-3-3	C	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". INDEPENDENT SCHOOL DISTRICT NO. 93, POTTAWATOMIE COUNTY, OKLAHOMA, Plaintiff-Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Defendant-Appellee. No. 268-70. United States Court of Appeals, Tenth Circuit. Dec. 30, 1970. J. C. Winterringer, Shawnee, Okl., Lawrence E. Hoecker and Hugh A. Bay-singer, Oklahoma City, Okl., for plaintiff-appellant. Byrne A. Bowman, Oklahoma City, Okl., for defendant-appellee. Before PICKETT, HILL and SETH, Circuit Judges. HILL, Circuit Judge. This suit was brought by Independent School District #93, Pottawatomie County, Oklahoma, (hereinafter called School District) to recover on a statutory official bond covering the treasurer for the School District, Kenneth E. Bovee. Bovee was the treasurer of the School District from January 7, 1957, to October 31, 1965, at which time he was removed for cause following an official audit by a state examiner and inspector. This audit revealed that the School Board had routinely approved expenditures in excess of general fund appropriations, and that Bovee had failed to maintain required records of appropriations and thus had registered and paid all the warrants approved by the School Board. During this period Bovee was covered by two different surety companies. Trinity Universal Insurance Company carried the bond from 1957 until January 7, 1964, at which time bond coverage shifted to the Western Surety Company which carried the bond until Bovee’s removal for cause. The present suit only involves coverage under Trinity’s bond from September 27, 1961, because of the five year statute of limitations. 12 O.S.1961, § 95. The School District has previously brought suit against Western Surety Company concerning their liability on the bond covering Bovee from January 7, 1964, until October 31, 1965. Independent School District 93 v. Western Surety Co., 419 F.2d 78 (10th Cir. 1969). The same basic facts established in the Western case were also found by the trial court to exist in the present suit. Although the findings of fact in Western are not binding in the present case, still the exact same rules of law will apply. Bovee’s statutory duties as treasurer were set out in Western, 419 F.2d at 80. Those duties which Bovee failed to perform and which were found to be violative of the state’s requirements in Western were also found to be omitted in the instant case. Thus in this case as in Western, there is no question but that Bovee did not faithfully perform his duties as required by state statutes and insured by the bond. As pointed out in Western, however, this is not depositive of the question of liability. In 'Western, recovery was not allowed because it was found that there was a failure of proof, i. e., there was no showing of which warrants Bovee could have prevented payment on had he maintained the proper records. This same failure of proof exists in the instant ease, and plaintiff’s attempt to recover for Bovee’s registering and paying warrants in excess of appropriation fails. The bond coverage in Western was separated into two terms from January, 1964, until January, 1965, and from January, 1965, until October, 1965. These terms did not match the fiscal terms which ran from July 1 until June 30. This mismatch created an additional burden of proof for the School District, i. e., “there was no proof that the excessive warrants paid in fiscal 1963-64 were paid in the last half of the fiscal year which was the only part of the fiscal year covered by the first bond.” Western, supra, at 82. The same situation existed for that portion of the fiscal year running from July, 1965, until October, 1965. Id. This is directly analogous to the partial terms in the instant case of September, 1961, until June 30, 1962, and July, 1963, until January, 1964. Here, as in Western, plaintiff did not meet this additional burden of proof. Here fiscal year 1962-63 is analogous to fiscal year 1964-65 in the Western case in that the entire year was covered by the same company’s bond, the only difference being that Trinity’s bond was considered continuous, giving only $100,-000 coverage straight through from 1957 until 1964. The bond in Western was considered two separate bonds. The basis of the court’s decision in Western in regard to fiscal year 1964-65 was: “[A]ppellant failed to show which warrants paid in 1964-65 exceeded the appropriation. Absent such a showing, it is impossible to say how many of these warrants Bovee could have discovered had he kept the account required by 68 O.S.1961, Sec. 299, * * * ” This exact reasoning applies to the instant case, and the difference in viewing the term of the bond is immaterial. The sole argument put forth by plaintiff to distinguish Western is that in the instant case Bovee’s testimony was included in the record. The testimony relied upon by plaintiff concerns statements by Bovee admitting that he discontinued keeping records of appropriations after December of 1959, that he used general fund appropriations from one year to pay excess general fund warrants from the preceding year, that he commingled protected fund revenues with the general fund cash, and that he did not maintain records to show the status of the various accounts. This evidence, however, goes solely to the issue of Bovee’s failure to perform his statutory duties, and as was found in both the Western and the instant case, there was no question but that Bovee did not perform his statutory duties. This evidence had nothing to do with establishing which of the warrants Bovee could have prevented paying had he maintained the proper records. An examination of the entire record reveals that such evidence was not introduced, and that at least with regard to liability for warrants registered in excess of general fund appropriations, there can be no recovery because of a failure of proof. One further issue raised by the School District concerns a cash shortage from a particular fund, the 1960 Bond Fund. John Pan tier, the state accountant who performed the audit of the financial position of the School District, testified that as of October 31, 1961, there was, considering all available cash assets, $68,-457.55 less than the amount required to be present in the 1960 Bond Fund. He further testified that as of September 30, 1962, there was a cash shortage, computed in the same manner, of $91,193.19. The School District argues that these shortages had to result from using funds from the 1960 Bond Fund to pay warrants drawn on some other fund, which is in violation of Oklahoma law. There is probably no question but that if a shortage were found to exist from the 1960 Bond Fund because of expenditures drawn from that fund to pay warrants drawn on another fund Bovee would be liable. Cf. State ex rel. Lester v. Baker, 156 Kan. 439, 134 P.2d 386 (1943). However, the audit shows that $395,000, or the entire amount of the 1960 Bond Fund, was paid out in valid warrants drawn on the 1960 Bond Fund. Thus it'appears that even though at some point in time there were not sufficient funds to have paid out in cash the 1960 Bond Fund, still the full amount of that fund was expended in legal warrants drawn specifically on that fund. It is clear that no warrants were intentionally drawn against the 1960 Bond Fund and applied to other expenditures, and that any loss against this fund was only temporary in nature. Thus cases cited by the School District, such as Newport v. McLane, 256 Ky. 803, 77 S.W.2d 27 (1934), are not applicable. The School District argues that the only way all the payments could have been made from the 1960 Bond Fund was to have further illegal transfers between other funds, and that such illegal acts cannot correct the initial illegal act. It is, however, far from established under Oklahoma law or that of any jurisdiction, see Annot. 96 A.L.R. 664, whether such an inadvertent temporary transfer should constitute a loss such as to make the treasurer and his bondsman liable. As this question is solely one of state law and is a case of first impression, it is primarily a question for the determination of the trial court judge, and his interpretation of the ruling Oklahoma law will not be overturned by us unless clearly erroneous. Machinery Center, Inc. v. Anchor National Life Insurance Co., 434 F.2d 1 (10th Cir. 1970); Parsons v. Amerada Hess Corp., 422 F.2d 610 (10th Cir. 1970). We cannot say that his finding was clearly in error and thus his decision not to allow plaintiff’s recovery on the theory of a cash shortage in the 1960 Bond Fund will not be reversed. Affirmed. . Jurisdiction in the Federal Court is based on diversity of citizenship and jurisdictional amount. 28 U.S.C. § 1332. . The bond provided by Trinity provided that the treasurer “shall well and faithfully perform all and singular the duties incumbent upon him by reason of his election or appointment as aforesaid, and honestly account for all monies coming into his hands as such officer, according to law * * . One of plaintiff’s contentions is that this bond term was not continuous but was separate for each individual year, leaving Trinity liable for $100,000 for each separate year term. This issue is not reached because of the finding that there was a failure of proof. . Based on this finding that plaintiff failed in its proof to show the extent of the damages, we do not reach the first element of the trial court’s decision not to award damages which was that since the School District received goods and services for all expenditures, there was no “loss or damage” sufficient to allow recovery. . There is also an allegation in Western concerning a cash shortage. This claim was not allowed because of failure to prove that payments were made from this particular protected fund within the term of either bond. Independent School District 93 v. Western Surety Co., 419 F.2d 78, 82 (10th Cir. 1969). . Even if the School District’s position were entirely valid, it could recover only $22,735.64, the difference between the cash shortage established on October 31, 1961, and that established on September 30, 1962, as it was not shown that the shortage as of October 31, 1961, occurred after the cutoff date of Sepember 27, 1961. Therefore, in speaking of proven cash shortages which occurred during the bond coverage in question in the instant case, we refer to the difference of the two amounts established, or $22,-735.64. 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:
sc_declarationuncon	B	What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules. Frederick L. ALLEN, et al., Petitioners v. Roy A. COOPER, III, Governor of North Carolina, et al. No. 18-877 Supreme Court of the United States. Argued November 5, 2019 Decided March 23, 2020 Susan Freya Olive, David L. McKenzie, Olive & Olive, P.A., G. Jona Poe, Jr., Poe Law Firm, PLLC, Durham, NC, Derek L. Shaffer, Kathleen Lanigan, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, Todd Anten, Ellyde R. Thompson, Lisa M. Geary, Joanna E. Menillo, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners. Joshua H. Stein, Attorney General of North Carolina, Matthew W. Sawchak, Solicitor General, Ryan Y. Park, Deputy Solicitor General, Nicholas S. Brod, Assistant Solicitor General, North Carolina Department of Justice, Raleigh, NC, for Respondents. Justice KAGAN delivered the opinion of the Court. In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), that the patent statute lacked a valid constitutional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion. I In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne's Revenge. The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge. She sank beneath the waters, where she lay undisturbed for nearly 300 years. In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 102 Stat. 433, 43 U.S.C. § 2105(c) ; N.C. Gen. Stat. Ann. § 121-22 (2019). But the State contracted with Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the operation. For over a decade, Allen created videos and photos of divers' efforts to salvage the Revenge's guns, anchors, and other remains. He registered copyrights in all those works. This suit arises from North Carolina's publication of some of Allen's videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties' respective rights to the materials. But Allen and the State soon found themselves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages. North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States. See State Defendants' Memorandum in No. 15-627 (EDNC), Doc. 50, p. 7. But Allen responded that an exception to the rule applied because Congress had abrogated the States' sovereign immunity from suits like his. See Plaintiffs' Response, Doc. 57, p. 7. The Copyright Remedy Clarification Act of 1990 (CRCA or Act) provides that a State "shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court" for copyright infringement. 17 U.S.C. § 511(a). And the Act specifies that in such a suit a State will be liable, and subject to remedies, "in the same manner and to the same extent as" a private party. § 501(a); see § 511(b). That meant, Allen contended, that his suit against North Carolina could go forward. The District Court agreed. Quoting the CRCA's text, the court first found that "Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state." 244 F.Supp.3d 525, 533 (E.D.N.C. 2017). And that abrogation, the court next held, had a proper constitutional basis. Florida Prepaid and other precedent, the District Court acknowledged, precluded Congress from using its Article I powers-including its authority over copyrights-to take away a State's sovereign immunity. See 244 F.Supp.3d at 534. But in the court's view, Florida Prepaid left open an alternative route to abrogation. Given the States' "pattern" of "abus[ive]" copyright infringement, the court held, Congress could accomplish its object under Section 5 of the Fourteenth Amendment. 244 F.Supp.3d at 535. On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. It read Florida Prepaid to prevent recourse to Section 5 no less than to Article I. A Section 5 abrogation, the Fourth Circuit explained, must be "congruent and proportional" to the Fourteenth Amendment injury it seeks to remedy. 895 F.3d 337, 350 (2018). Florida Prepaid had applied that principle to reject Congress's attempt, in the Patent Remedy Act, to abolish the States' immunity from patent infringement suits. See 527 U.S. at 630, 119 S.Ct. 2199. In the Fourth Circuit's view, nothing distinguished the CRCA. That abrogation, the court reasoned, was "equally broad" and rested on a "similar legislative record" of constitutional harm. 895 F.3d at 352. So Section 5 could not save the law. Because the Court of Appeals held a federal statute invalid, this Court granted certiorari. 587 U.S. ----, 139 S.Ct. 2664, 204 L.Ed.2d 1068 (2019). We now affirm. II In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a nonconsenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State. But this Court has long understood that Amendment to "stand not so much for what it says" as for the broader "presupposition of our constitutional structure which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). That premise, the Court has explained, has several parts. First, "each State is a sovereign entity in our federal system." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Next, "[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit" absent consent. Id., at 54 n. 13, 116 S.Ct. 1114 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)). And last, that fundamental aspect of sovereignty constrains federal "judicial authority." Blatchford, 501 U.S. at 779, 111 S.Ct. 2578. But not entirely. This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted "unequivocal statutory language" abrogating the States' immunity from the suit. Seminole Tribe, 517 U.S. at 56, 116 S.Ct. 1114 (internal quotation marks omitted); see Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (requiring Congress to "mak[e] its intention unmistakably clear"). And second, some constitutional provision must allow Congress to have thus encroached on the States' sovereignty. Not even the most crystalline abrogation can take effect unless it is "a valid exercise of constitutional authority." Kimel v. Florida Bd. of Regents, 528 U.S. 62, 78, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). No one here disputes that Congress used clear enough language to abrogate the States' immunity from copyright infringement suits. As described above, the CRCA provides that States "shall not be immune" from those actions in federal court. § 511(a) ; see supra, at 999 - 1000. And the Act specifies that a State stands in the identical position as a private defendant-exposed to liability and remedies "in the same manner and to the same extent." § 501(a); see § 511(b). So there is no doubt what Congress meant to accomplish. Indeed, this Court held in Florida Prepaid that the essentially verbatim provisions of the Patent Remedy Act "could not have [made] any clearer" Congress's intent to remove the States' immunity. 527 U.S. at 635, 119 S.Ct. 2199. The contested question is whether Congress had authority to take that step. Allen maintains that it did, under either of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copyright protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to "enforce" the commands of the Due Process Clause. Neither contention can succeed. The slate on which we write today is anything but clean. Florida Prepaid, along with other precedent, forecloses each of Allen's arguments. A Congress has power under Article I "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." § 8, cl. 8. That provision-call it the Intellectual Property Clause-enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. See Goldstein v. California, 412 U.S. 546, 560, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973). In Allen's view, Congress's authority to abrogate sovereign immunity from copyright suits naturally follows. Abrogation is the single best-or maybe, he says, the only-way for Congress to "secur[e]" a copyright holder's "exclusive Right[s]" as against a State's intrusion. See Brief for Petitioners 20 (quoting Art. I, § 8, cl. 8). So, Allen contends, the authority to take that step must fall within the Article I grant of power to protect intellectual property. The problem for Allen is that this Court has already rejected his theory. The Intellectual Property Clause, as just noted, covers copyrights and patents alike. So it was the first place the Florida Prepaid Court looked when deciding whether the Patent Remedy Act validly stripped the States of immunity from infringement suits. In doing so, we acknowledged the reason for Congress to put "States on the same footing as private parties" in patent litigation. 527 U.S. at 647, 119 S.Ct. 2199. It was, just as Allen says here, to ensure "uniform, surefire protection" of intellectual property. Reply Brief 10. That was a "proper Article I concern," we allowed. 527 U.S. at 648, 119 S.Ct. 2199. But still, we said, Congress could not use its Article I power over patents to remove the States' immunity. We based that conclusion on Seminole Tribe v. Florida, decided three years earlier. There, the Court had held that "Article I cannot be used to circumvent" the limits sovereign immunity "place[s] upon federal jurisdiction." 517 U.S. at 73, 116 S.Ct. 1114. That proscription ended the matter. Because Congress could not "abrogate state sovereign immunity [under] Article I," Florida Prepaid explained, the Intellectual Property Clause could not support the Patent Remedy Act. 527 U.S. at 636, 119 S.Ct. 2199. And to extend the point to this case: if not the Patent Remedy Act, not its copyright equivalent either, and for the same reason. Here too, the power to "secur[e]" an intellectual property owner's "exclusive Right" under Article I stops when it runs into sovereign immunity. § 8, cl. 8. Allen claims, however, that a later case offers an exit ramp from Florida Prepaid. In Central Va. Community College v. Katz, 546 U.S. 356, 359, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006), we held that Article I's Bankruptcy Clause enables Congress to subject nonconsenting States to bankruptcy proceedings (there, to recover a preferential transfer). We thus exempted the Bankruptcy Clause from Seminole Tribe's general rule that Article I cannot justify haling a State into federal court. In bankruptcy, we decided, sovereign immunity has no place. But if that is true, Allen asks, why not say the same thing here? Allen reads Katz as "adopt[ing] a clause-by-clause approach to evaluating whether a particular clause of Article I" allows the abrogation of sovereign immunity. Brief for Petitioners 20. And he claims that the Intellectual Property Clause "supplies singular warrant" for Congress to take that step. Ibid. That is so, Allen reiterates, because "Congress could not'secur[e]' authors' 'exclusive Right' to their works if [it] were powerless" to make States pay for infringing conduct. Ibid. But everything in Katz is about and limited to the Bankruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism. In part, Katz rested on the "singular nature" of bankruptcy jurisdiction. 546 U.S. at 369, n. 9, 126 S.Ct. 990. That jurisdiction is, and was at the Founding, "principally in rem "-meaning that it is "premised on the debtor and his estate, and not on the creditors" (including a State). Id., at 369-370, 126 S.Ct. 990 (internal quotation marks omitted). For that reason, we thought, "it does not implicate States' sovereignty to nearly the same degree as other kinds of jurisdiction." Id., at 362, 126 S.Ct. 990. In remaining part, Katz focused on the Bankruptcy Clause's "unique history." Id., at 369 n. 9, 126 S.Ct. 990. The Clause emerged from a felt need to curb the States' authority. The States, we explained, "had wildly divergent schemes" for discharging debt, and often "refus[ed] to respect one another's discharge orders." Id., at 365, 377, 126 S.Ct. 990. "[T]he Framers' primary goal" in adopting the Clause was to address that problem-to stop "competing sovereigns[ ]" from interfering with a debtor's discharge. Id., at 373, 126 S.Ct. 990. And in that project, the Framers intended federal courts to play a leading role. The nation's first Bankruptcy Act, for example, empowered those courts to order that States release people they were holding in debtors' prisons. See id., at 374, 126 S.Ct. 990. So through and through, we thought, the Bankruptcy Clause embraced the idea that federal courts could impose on state sovereignty. In that, it was sui generis -again, "unique"-among Article I's grants of authority. Id., at 369 n. 9, 126 S.Ct. 990. Indeed, Katz's view of the Bankruptcy Clause had a yet more striking aspect, which further separates it from any other. The Court might have concluded from its analysis that the Clause allows Congress to abrogate the States' sovereign immunity (as Allen argues the Intellectual Property Clause does). But it did not; it instead went further. Relying on the above account of the Framers' intentions, the Court found that the Bankruptcy Clause itself did the abrogating. Id., at 379, 126 S.Ct. 990 ("[T]he relevant 'abrogation' is the one effected in the plan of the [Constitutional] Convention"). Or stated another way, we decided that no congressional abrogation was needed because the States had already "agreed in the plan of the Convention not to assert any sovereign immunity defense" in bankruptcy proceedings. Id., at 377, 126 S.Ct. 990. We therefore discarded our usual rule-which Allen accepts as applying here-that Congress must speak, and indeed speak unequivocally, to abrogate sovereign immunity. Compare id., at 378-379, 126 S.Ct. 990 ("[O]ur decision today" does not "rest[ ] on any statement Congress ha[s] made on the subject of state sovereign immunity"), with supra, at 1000 - 1001 (our ordinary rule). Our decision, in short, viewed bankruptcy as on a different plane, governed by principles all its own. Nothing in that understanding invites the kind of general, "clause-by-clause" reexamination of Article I that Allen proposes. See supra, at 1002. To the contrary, it points to a good-for-one-clause-only holding. And even if Katz's confines were not so clear, Florida Prepaid, together with stare decisis, would still doom Allen's argument. As Allen recognizes, if the Intellectual Property Clause permits the CRCA's abrogation, it also would permit the Patent Remedy Act's. See Tr. of Oral Arg. 9 (predicting that if his position prevailed, "ultimately, the Patent Remedy Act would be revisited and properly upheld as a valid exercise of Congress's Article I power"). Again, there is no difference between copyrights and patents under the Clause, nor any material difference between the two statutes' provisions. See supra, at 999, and n. 1, 6. So we would have to overrule Florida Prepaid if we were to decide this case Allen's way. But stare decisis, this Court has understood, is a "foundation stone of the rule of law." Michigan v. Bay Mills Indian Community, 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). To reverse a decision, we demand a "special justification," over and above the belief "that the precedent was wrongly decided." Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266, 134 S.Ct. 2398, 189 L.Ed.2d 339 (2014). Allen offers us nothing special at all; he contends only that if the Court were to use a clause-by-clause approach, it would discover that Florida Prepaid was wrong (because, he says again, the decision misjudged Congress's authority under the Intellectual Property Clause). See Brief for Petitioners 37; supra, at 1002. And with that charge of error alone, Allen cannot overcome stare decisis. B Section 5 of the Fourteenth Amendment, unlike almost all of Article I, can authorize Congress to strip the States of immunity. The Fourteenth Amendment "fundamentally altered the balance of state and federal power" that the original Constitution and the Eleventh Amendment struck. Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. Its first section imposes prohibitions on the States, including (as relevant here) that none may "deprive any person of life, liberty, or property, without due process of law." Section 5 then gives Congress the "power to enforce, by appropriate legislation," those limitations on the States' authority. That power, the Court has long held, may enable Congress to abrogate the States' immunity and thus subject them to suit in federal court. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). For an abrogation statute to be "appropriate" under Section 5, it must be tailored to "remedy or prevent" conduct infringing the Fourteenth Amendment's substantive prohibitions. City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress can permit suits against States for actual violations of the rights guaranteed in Section 1. See Fitzpatrick, 427 U.S. at 456, 96 S.Ct. 2666. And to deter those violations, it can allow suits against States for "a somewhat broader swath of conduct," including acts constitutional in themselves. Kimel, 528 U.S. at 81, 120 S.Ct. 631. But Congress cannot use its "power to enforce" the Fourteenth Amendment to alter what that Amendment bars. See id., at 88, 120 S.Ct. 631 (prohibiting Congress from "substantively redefin[ing]" the Fourteenth Amendment's requirements). That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to conduct courts have held Section 1 to proscribe. To decide whether a law passes muster, this Court has framed a type of means-end test. For Congress's action to fall within its Section 5 authority, we have said, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Boerne, 521 U.S. at 520, 117 S.Ct. 2157. On the one hand, courts are to consider the constitutional problem Congress faced-both the nature and the extent of state conduct violating the Fourteenth Amendment. That assessment usually (though not inevitably) focuses on the legislative record, which shows the evidence Congress had before it of a constitutional wrong. See Florida Prepaid, 527 U.S. at 646, 119 S.Ct. 2199. On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Congress has gone beyond redressing actual constitutional violations. Hard problems often require forceful responses and, as noted above, Section 5 allows Congress to "enact[ ] reasonably prophylactic legislation" to deter constitutional harm. Kimel, 528 U.S. at 88, 120 S.Ct. 631 ; Boerne, 521 U.S. at 536, 117 S.Ct. 2157 (Congress's conclusions on that score are "entitled to much deference"); supra, at 1003 - 1004. But "[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Boerne, 521 U.S. at 530, 117 S.Ct. 2157. Always, what Congress has done must be in keeping with the Fourteenth Amendment rules it has the power to "enforce." All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. See Fox Film Corp. v. Doyal, 286 U.S. 123, 128, 52 S.Ct. 546, 76 L.Ed. 1010 (1932). And the Fourteenth Amendment bars the States from "depriv[ing]" a person of property "without due process of law." But even if sometimes, by no means always. Under our precedent, a merely negligent act does not "deprive" a person of property. See Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. See id., at 334, n. 3, 106 S.Ct. 662 (reserving whether reckless conduct suffices). And more: A State cannot violate that Clause unless it fails to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of "due process." See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). That means within the broader world of state copyright infringement is a smaller one where the Due Process Clause comes into play. Because the same is true of patent infringement, Florida Prepaid again serves as the critical precedent. That decision defined the scope of unconstitutional infringement in line with the caselaw cited above-as intentional conduct for which there is no adequate state remedy. See 527 U.S., at 642-643, 645, 119 S.Ct. 2199. It then searched for evidence of that sort of infringement in the legislative record of the Patent Remedy Act. And it determined that the statute's abrogation of immunity-again, the equivalent of the CRCA's-was out of all proportion to what it found. That analysis is the starting point of our inquiry here. And indeed, it must be the ending point too unless the evidence of unconstitutional infringement is materially different for copyrights than patents. Consider once more, then, Florida Prepaid, now not on Article I but on Section 5. In enacting the Patent Remedy Act, Florida Prepaid found, Congress did not identify a pattern of unconstitutional patent infringement. To begin with, we explained, there was only thin evidence of States infringing patents at all-putting aside whether those actions violated due process. The House Report, recognizing that "many states comply with patent law," offered just two examples of patent infringement suits against the States. Id., at 640, 119 S.Ct. 2199 (quoting H.R. Rep. No. 101-960, pt. 1, p. 38 (1990)). The appellate court below, boasting some greater research prowess, discovered another seven in the century-plus between 1880 and 1990. See 527 U.S. at 640, 119 S.Ct. 2199. Even the bill's House sponsor conceded the lack of "any evidence" of "widespread violation of patent laws." Id., at 641, 119 S.Ct. 2199 (quoting statement of Rep. Kastenmeier). What was more, there was no evidence that any instance of infringement by States crossed constitutional lines. Congress, we observed, "did not focus" on intentional or reckless conduct; to the contrary, the legislative record suggested that "most state infringement was innocent or at worst negligent." Id., at 645, 119 S.Ct. 2199. And similarly, Congress "barely considered the availability of state remedies for patent infringement." Id., at 643, 119 S.Ct. 2199. So, we concluded, nothing could support the idea that States were more than sporadically (if that) "depriving patent owners of property without due process of law." Id., at 646, 119 S.Ct. 2199. Given that absence of evidence, Florida Prepaid held, the Patent Remedy Act swept too far. Recall what the Patent Remedy Act did-and did not. It abrogated sovereign immunity for any and every patent suit, thereby "plac[ing] States on the same footing as private parties." Id., at 647, 119 S.Ct. 2199. It did not set any limits. It did not, for example, confine the abrogation to suits alleging "nonnegligent infringement or infringement authorized [by] state policy." Ibid. Neither did it target States refusing to offer alternative remedies to patent holders. No, it exposed all States to the hilt-on a record that failed to show they had caused any discernible constitutional harm (or, indeed, much harm at all). That imbalance made it impossible to view the legislation "as responsive to, or designed to prevent, unconstitutional behavior." Id., at 646, 119 S.Ct. 2199 (quoting Boerne, 521 U.S. at 532, 117 S.Ct. 2157 ). The statute's "indiscriminate scope" was too "out of proportion" to any due process problem. 527 U.S. at 646-647, 119 S.Ct. 2199. It aimed not to correct such a problem, but to "provide a uniform remedy for patent infringement" writ large. Id., at 647, 119 S.Ct. 2199. The Patent Remedy Act, in short, did not "enforce" Section 1 of the Fourteenth Amendment-and so was not "appropriate" under Section 5. Could, then, this case come out differently? Given the identical scope of the CRCA and Patent Remedy Act, that could happen only if the former law responded to materially stronger evidence of infringement, especially of the unconstitutional kind. Allen points to a significant disparity in how Congress created a record for the two statutes. See Brief for Petitioners 7-10, 47-50. Before enacting the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report about the effects of the Eleventh Amendment on copyright enforcement. Oman and his staff conducted a year-long examination, which included a request for public comments eliciting letters from about 40 copyright holders and industry groups. The final 158-page report concluded that "copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court." Copyright Office, Copyright Liability of States and the Eleventh Amendment 103 (1988) (Oman Report). Is that report enough, as Allen claims, to flip Florida Prepaid's outcome when it comes to copyright cases against the States? It is not. Behind the headline-grabbing conclusion, nothing in the Oman Report, or the rest of the legislative record, cures the problems we identified in Florida Prepaid. As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up with only a dozen possible examples of state infringement. He listed seven court cases brought against States (with another two dismissed on the merits) and five anecdotes taken from public comments (but not further corroborated). See Oman Report, at 7-9, 90-97. In testifying about the report, Oman acknowledged that state infringement is "not widespread" and "the States are not going to get involved in wholesale violation of the copyright laws." Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, 101st Cong., 1st Sess., 53 (1989) (House Hearings). Indeed, he opined: "They are all respectful of the copyright law" and "will continue to respect the law"; what State, after all, would "want[ ] to get a reputation as a copyright pirate?" Id., at 8. The bill's House and Senate sponsors got the point. The former admitted that "there have not been any significant number" of copyright violations by States. Id., at 48 (Rep. Kastenmeier). And the latter conceded he could not currently see "a big problem." Hearings on S. 497 before the Subcommittee on Patents, Copyrights and Trademarks, 101st Cong., 1st Sess., 130 (1989) (Sen. DeConcini). This is not, to put the matter charitably, the stuff from which Section 5 legislation ordinarily arises. And it gets only worse. Neither the Oman Report nor any other part of the legislative record shows concern with whether the States' copyright infringements (however few and far between) violated the Due Process Clause. Of the 12 infringements listed in the report, only two appear intentional, as they must be to raise a constitutional issue. See Oman Report, at 7-8, 91 (describing a judicial finding of "willful" infringement and a public comment charging continued infringement after a copyright owner complained). As Oman testified, the far greater problem was the frequency of "honest mistakes" or "innocent" misunderstandings; the benefit of the bill, he therefore thought, would be to "guard against sloppiness." House Hearings, at 9. Likewise, the legislative record contains no information about the availability of state-law remedies for copyright infringement (such as contract or unjust enrichment suits)-even though they might themselves satisfy due process. Those deficiencies in the record match the ones Florida Prepaid emphasized. See 527 U.S. at 643-645, 119 S.Ct. 2199. Here no less than there, they signal an absence of constitutional harm. Under Florida Prepaid, the CRCA thus must fail our "congruence and proportionality" test. Boerne, 521 U.S. at 520, 117 S.Ct. 2157. As just shown, the evidence of Fourteenth Amendment injury supporting the CRCA and the Patent Remedy Act is equivalent-for both, that is, exceedingly slight. And the scope of the two statutes is identical-extending to every infringement case against a State. It follows that the balance the laws strike between constitutional wrong and statutory remedy is correspondingly askew. In this case, as in Florida Prepaid, the law's "indiscriminate scope" is "out of proportion" to any due process problem. 527 U.S. at 646-647, 119 S.Ct. 2199 ; see supra, at 1005 - 1006. In this case, as in that one, the statute aims to "provide a uniform remedy" for statutory infringement, rather than to redress or prevent unconstitutional conduct. 527 U.S. at 647, 119 S.Ct. 2199 ; see supra, at 1005 - 1006. And so in this case, as in that one, the law is invalid under Section 5. That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the CRCA. At that time, the Court had not yet decided Seminole Tribe, so Congress probably thought that Article I could support its all-out abrogation of immunity. See supra, at 1002. And to the extent it relied on Section 5, Congress acted before this Court created the "congruence and proportionality" test. See supra, at 1004. For that reason, Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries-and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice. III Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I's Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And it held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below. It is so ordered. Justice THOMAS, concurring in part and concurring in the judgment. I agree with the Court's conclusion that the Copyright Remedy Clarification Act of 1990, 17 U.S.C. § 501 et seq., does not validly abrogate States' sovereign immunity. But I cannot join the Court's opinion in its entirety. I write separately to note two disagreements and one question that remains open for resolution in a future case. First, although I agree that Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance? A. No declaration of unconstitutionality B. Act of Congress declared unconstitutional C. State or territorial law, regulation, or constitutional provision unconstitutional D. Municipal or other local ordinance unconstitutional Answer:
songer_genresp1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America ex rel. William E. BAITY E-1152, Appellant, v. James F. MARONEY, Superintendent. No. 18979. United States Court of Appeals, Third Circuit. Submitted on Briefs Dec. 11, 1970. Decided Dec. 29, 1970. William E. Baity, pro se. James D. Crawford, Deputy Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa., on the brief, for appellee. Before ALDISERT, ADAMS, and ROSENN, Circuit Judges. OPINION OF THE COURT PER CURIAM: Before us is an appeal from the district court’s denial of a writ of habeas corpus. Represented by counsel, the appellant in 1949 entered a guilty plea to a general charge of murder before a panel of three judges which made a finding of first degree murder and imposed a life sentence. He took no direct appeal from the finding and the sentence. Seventeen years later, contending that his guilty plea had been unlawfully induced by a coerced confession, appellant filed a petition under the Pennsylvania Post Conviction Hearing Act. Testimony from both appellant and his trial counsel was received at an evidentiary hearing. The state court denied the petition, and the denial was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968). Appellant then filed a habeas corpus petition in the district court, and a second evidentiary hearing was held at which the appellant and trial counsel again testified. The district court denied the petition. We find no merit in any of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for heabeas corpus. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, appellant’s trial counsel testified that appellant did not tell him his confession was coerced. And both the state court and the district court, after separate evidentiary hearings, found no coercion. The record indicates that the Pennsylvania felony-murder rule was explained to appellant by his counsel and suggests that appellant was induced to plead guilty because of assurances that the maximum sentence would be life imprisonment. This inflicts no constitutional infirmities upon the proceedings. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25 91 S.Ct. 160, 27 L.Ed.2d 162 (November 23, 1970). The judgment of the district court will be affirmed. . The district court applied the standard in effect at the time of the hearing which imposed upon the Commonwealth the burden of proving the voluntary nature of a guilty plea, United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3 Cir. 1968) ; United States ex rel. Fink v. Rundle, 414 F.2d 542 (3 Cir. 1969). We have expressly stated that these cases are not to be followed to the extent they may be inconsistent with our later decision in Grays. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Douglas Earl SAVAGE, Defendant-Appellant. No. 72-3145. United States Court of Appeals, Ninth Circuit. Aug. 8, 1973. Rehearing Denied Sept. 5, 1973. Charles Robinowitz (argued), Portland, Or., for defendant-appellant. Tommy Hawk; Asst. U. S. Atty. (argued, Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee. Before HUFSTEDLER and CHOY, Circuit Judges, and TAYLOR, District Judge. The Honorable Fred M. Taylor, United States District Judge for the District of Idaho, sitting by designation. CHOY, Circuit Judge: Douglas Earl Savage was convicted after a jury trial of bank robbery and using a firearm to commit a felony in violation of 18 U.S.C. §§ 2113(a), 924(c). He was sentenced to fifteen year and five year terms to run concurrently. We affirm. In April 1971, two men, wearing masks and brandishing firearms, entered a federally-insured bank in a small Oregon town, took about $29,000 and escaped in a 1969 Dodge station wagon. The key government witness, Margaret Casebeer, was the wife of one of the robbers. After charges against her were reduced, Mrs. Casebeer testified that she made the masks for Savage and her husband, was present when plans were discussed, and waited for the two men outside of town while the robbery took place. Mrs. Casebeer was also present when Savage discussed the robbery the next day. There was an abundance of corroborative evidence presented by the prosecution, including an admission by Savage to his mother that he had robbed the bank. After his arrest and while he was in custody, Savage wrote a letter to Ronald Casebeer who was then confined in the federal penitentiary at .McNeil Island. The letter was intercepted by a prison security officer who made a photocopy of the original before forwarding it to Casebeer. The letter contained the ingredients of an alibi by Savage, attempting to shift the blame for the robbery to one Mayberry, and detailing Savage’s actions at the time of the robbery and subsequently. At trial, a copy of the letter from Savage to Casebeer was introduced as evidence. The security officer testified that the letter had been copied exactly and Casebeer’s testimony from a previous trial indicated that the original had been • destroyed. Under these circumstances, the copy was held admissible. Savage makes three contentions on this appeal: (1) that the photocopy of his letter to Casebeer was improperly admitted into evidence; (2) that his fourth amendment rights were violated when the letter was intercepted and photocopied by the prison security officer; and (3) failure to record the proceedings before the grand jury requires reversal. To prove the terms of a writing, the original writing must be produced unless it is shown to be unavailable for some reason other than the fault of the proponent. The loss or destruction of an original writing is a longstanding basis for asserting unavailability. C. McCormick, Law of Evidence § 201 at 413 (1954); 4 J. Wigmore, On Evidence § 1193-98 (1972). See also Proposed Rules of Evidence for the U. S. District Courts and Magistrates, Rule 1004(1). Savage’s first contention fails since there was proof that the original was destroyed and the security guard testified that the copy was an exact reproduction. Savage was in custody when he wrote his letter to Casebeer. He argues that opening and copying the letter was an unconstitutional invasion of his privacy. Individuals do not forfeit all their constitutional rights when they are taken into custody. A prisoner is entitled to the fourth amendment’s protection from unreasonable searches and seizures. Burns v. Wilkinson, 333 F.Supp. 94, 96 (W.D.Mo.1971); Palmigiano v. Travisono, 317 F.Supp. 776, 791 (D.R.I.1970). But under the standard enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), what society recognizes as a reasonable expectation of privacy is restricted when the individual asserting the expectation is incarcerated or in custody. The view that prison authorities may examine the communications of a prisoner without infringing upon his constitutional rights has recently come under fire on both first and -.fourth amendment grounds. A three-judge court in Martinez v. Procunier, 354 F.Supp. 1092 (N.D.Calif.1973), prob. jur. noted, - U.S. -, 93 S.Ct. 3013, 37 L.Ed.2d 1000 (1973), held that a prisoner’s right to correspond was a fundamental right protected by the first amendment. The State of California’s regulations, which permitted the reading of incoming and outgoing mail, were held violative of the first amendment because they were not both reasonably and necessarily related to the advancement of some justifiable purpose of imprisonment or prison security. A similar practice was condemned on both first and fourth amendment grounds in Palmigiano, supra. We think that absent a showing of some justifiable purpose of imprisonment or prison security the interception and photocopying of the letter was violative of the fourth amendment and the letter should have been excluded as evidence. Here no such showing was made. Despite the failure to exclude the letter, Savage’s conviction must stand. There was overwhelming evidence of Savage’s guilt and the illegally admitted evidence did not contribute to his conviction. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Hence, the constitutional error was harmless beyond a reasonable doubt. Nor did the admission of the letter prejudice Savage since the contents were directed at exculpating him and did not contain any self-incriminatory statements. We held in United States v. Price, 474 F.2d 1223 (9th Cir. 1973) that upon a proper motion, failure to record grand jury proceedings absent a showing of a compelling government interest to be served by nonrecordation is an abuse of discretion by the district court. In the instant case, however, no request for recordation was made. Affirmed. . The principal authority for this view is found in Stroud v. United States, 251 U.S. 15 (1919) and United States v. Wilson, 447 F.2d 1, 8 (9th Cir. 1971). Other circuits have expressed similar views. See Denson v. United States, 424 F.2d 329 (10th Cir. 1970), and cases cited therein Those decisions hold that prison discipline or security justify the examination of a prisoner’s communications. To that extent we are in complete agreement but add the proviso that justification must be demonstrated. . See also Dreyer v. Jalet, 349 F.Supp. 452, 483 (S.D.Tex.1972); Lamar v. Kern, 349 F.Supp. 222, 225 (S.D.Tex.1972); Guajardo v. McAdams, 349 F.Supp. 211, 219 (S.D.Tex.1972). 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_petitioner	027	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. UNITED STATES v. R. F. BALL CONSTRUCTION CO., INC., et al. No. 97. Argued January 27, 1958. Decided March 3, 1958. Alexander F. Prescott argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and George F. Lynch. Josh H. Groce argued the cause for respondents. With him on the brief was Jack Hebdon for the United Pacific Insurance Co., respondent. Mr. Groce also filed a brief for the R. F. Ball Construction Co., Inc., respondent. Per Curiam. The judgment is reversed. The instrument involved being inchoate and unperfected, the provisions of § 3672 (a), Revenue Act of 1939, 53 Stat. 449, as amended, 53 Stat. 882, 56 Stat. 957, do not apply. See United States v. Security Trust & Savings Bank, 340 U. S. 47; United States v. City of New Britain, 347 U. S. 81, 86-87. The claim of the interpleader for its costs is controlled by United States v. Liverpool & London & Globe Ins. Co., 348 U. S. 215. 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_circuit	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. NATIONAL LABOR RELATIONS BOARD v. NASHUA MANUFACTURING CORPORATION OF TEXAS. No. 15204. United States Court of Appeals, Fifth Circuit. Jan. 21, 1955. George J. Bott, General Counsel, Frederick U. Reel, Abraham Siegel, Washington, D. C., Victor H. Hess, Jr., New Orleans, La., A. Norman Somers, Marcel Mallet-Prevost, Assistant General Counsels, David P. Findling, Associate General Counsel, Washington, D. C., for National Labor Relations Board. I. M. Lux, Kansas City, Mo., for respondent. Before HUTCHESON, Chief Judge, BORAH, Circuit Judge, and DAWKINS, District Judge. HUTCHESON, Chief Judge. Upon findings that respondent had, in violation of the Act, interrogated its employees concerning their, union affiliations and had made statements and taken attitudes designed and calculated to discourage them from assisting or being members of a union, the examiner concluded and recommended that it be required to cease and desist from such practices. The Board, in a decision and order reported in 108 N.L.R.B. 117, approved the findings of the examiner, entered the order recommended by him, and is here, by petition, brief, and oral argument, seeking its enforcement. Respondent, in a vigorous brief and argument, citing cases in support, challenges findings of the examiner as without support in the evidence, and insists that, upon the view of the evidence most favorable to the Board, the things said and done were not in violation of the Act, and upon the authority of N.L.R.B. v. Montgomery Ward & Co., 2 Cir., 192 F.2d 160, that the order forbidding the interrogation of employees was too broad. An examination of the evidence, as Board and respondent set it out, convinces us that, fairly considered, the evidence supports the findings of examiner and Board. Since, however, the order is too broad in unqualifiedly forbidding mere interrogation of employees concerning their union affiliations, the order will be amended by inserting before the word “interrogating” the words “coercively or otherwise unlawfully”. As thus amended, the order will be enforced. Amended and enforced. 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:
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. ENGQUIST v. OREGON DEPARTMENT OF AGRICULTURE et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 07-474. Argued April 21, 2008 Decided June 9, 2008 Neal Katyal argued the cause for petitioner. With him on the briefs were David H. Remes, Jeffrey C. Wu, Virginia A. Seitz, Jeffrey T Green, Quin M. Sorenson, Craig A. Crispin, and Sarah O'Rourke Schrup. Janet A. Metcalf, Assistant Attorney General of Oregon, argued the cause for respondents. With her on the brief were Hardy Myers, Attorney General, Peter Shepherd, Deputy Attorney General, and Mary H. Williams, Solicitor General. Lisa S. Blatt argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Clement, Acting Solicitor General Garre, Acting Assistant Attorney General Bucholtz, and Irene M. Solet Briefs of amici curiae urging reversal were filed for the Lambda Legal Defense and Education Fund, Inc., et al. by William M. Hohengarten, Jon W. Davidson, Susan L. Sommer, Steven R. Shapiro, and Gary D. Buseck; for the National Association of Police Organizations, Inc., et al. by William John Johnson and J. Michael McGuinness; for the National Education Association et al. by John M. West, Michael D. Simpson, Harold Craig Becker, and Jonathan R Hiatt; for the National Employment Lawyers Association by Kathleen Eldergill; for the National Fraternal Order of Police by Larry H. James and Christina L. Corl; for Richard Epstein et al. by Aaron M. Panner; and for Meir J. Westreieh by Mr. Westreich, pro se. Briefs of amici curiae urging affirmance were filed for the Commonwealth of Pennsylvania et al. by Thomas W. Corbett, Jr., Attorney General of Pennsylvania, John G. Knorr III, Chief Deputy Attorney General, and Calvin R. Koons, Senior Deputy Attorney General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Tom Miller of Iowa, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Marc Dann of Ohio, W. A Drew Edmondson of Oklahoma, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Mark Shurtleff of Utah, Robert M. McKenna of Washington, and Bruce A. Salzburg of Wyoming; for the League of California Cities et al. by Brian P. Walter; for the National Conference of State Legislatures et al. by Richard Ruda; and for the National School Boards Association by Francisco M. Negrón, Jr., Naomi Gittins, Lisa E. Soronen, Elizabeth Eynon-Kokrda, and Kenneth W. Hartman. Chief Justice Roberts delivered the opinion of the Court. The question in this case is whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class. We hold that such a “class-of-one” theory of equal protection has no place in the public employment context. I Anup Engquist, the petitioner in this case, was hired in 1992 by Norma Corristan to be an international food standard specialist for the Export Service Center (ESC), a laboratory within the Oregon Department of Agriculture (ODA). During the course of her employment, Engquist experienced repeated problems with Joseph Hyatt, another ODA employee, complaining to Corristan that he had made false statements about her and otherwise made her life difficult. Corristan responded by directing Hyatt to attend diversity and anger management training. In 2001, John Szczepanski, an assistant director of ODA, assumed responsibility over ESC, supervising Corristan, Hyatt, and Engquist. Szczepanski told a client that he could not “control” Engquist, and that Engquist and Corristan “would be gotten rid of.” When Engquist and Hyatt both applied for a vacant managerial post within ESC, Szczepanski chose Hyatt despite Engquist’s greater experience in the relevant field. Later that year, during a round of across-the-board budget cuts in Oregon, Szczepanski eliminated Corristan’s position. Finally, on January 31, 2002, Engquist was informed that her position was being eliminated because of reorganization. Engquist’s collective-bargaining agreement gave her the opportunity either to “bump” to another position at her level, or to take a demotion. She was found unqualified for the only other position at her level and declined a demotion, and was therefore effectively laid off. Engquist subsequently brought suit in the United States District Court for the District of Oregon against ODA, Szczepanski, and Hyatt, all respondents here, alleging violations of federal antidiscrimination statutes, the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and state law. As to Engquist’s equal protection claim, she alleged that the defendants discriminated against her on the basis of her race, sex, and national origin. She also brought what is known as a “class-of-one” equal protection claim, alleging that she was fired not because she was a member of an identified class (unlike her race, sex, and national origin claims), but simply for “arbitrary, vindictive, and malicious reasons.” App. 10. The District Court granted the respondents’ motion for summary judgment as to some of Engquist’s claims, but allowed others to go forward, including each of the equal protection claims. As relevant to this case, the District Court found Engquist’s class-of-one equal protection claim legally viable, deciding that the class-of-one theory was fully applicable in the employment context. Civ. No. 02-1637-AS (D Ore., Sept. 14,2004), App. 49, 58, 2004 WL 2066748, *5. The court held that Engquist could succeed on that theory if she could prove “that she was singled out as a result of animosity on the part of Hyatt and Szczepanski” — i. e., “that their actions were spiteful efforts to punish her for reasons unrelated to any legitimate state objective” — and if she could demonstrate, on the basis of that animosity, that “she was treated differently than others who were similarly situated.” Ibid. The jury rejected Engquist’s claims of discrimination for membership in a suspect class — her race, sex, and national origin claims — but found in her favor on the class-of-one claim. Specifically, the jury found that Hyatt and Szczepanski “intentionally treat[ed] [Engquist] differently than others similarly situated with respect to the denial of her promotion, termination of her employment, or denial of bumping rights without any rational basis and solely for arbitrary, vindictive or malicious reasons.” App. to Pet. for Cert. 3-4. The jury also found for Engquist on several of her other claims, and awarded her $175,000 in compensatory damages and $250,000 in punitive damages. The Court of Appeals reversed in relevant part. It recognized that this Court had upheld a class-of-one equal protection challenge to state legislative and regulatory action in Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam). 478 F. 3d 985, 992-993 (CA9 2007). The court below also acknowledged that other Circuits had applied Olech in the public employment context, 478 F. 3d, at 993 (citing cases), but it disagreed with those courts on the ground that our cases have routinely afforded government greater leeway when it acts as employer rather than regulator, id., at 993-996. The court concluded that extending the class-of-one theory of equal protection to the public employment context would lead to undue judicial interference in state employment practices and “completely invalidate the practice of public at-will employment.” Id., at 995. The court accordingly held that the class-of-one theory is “inapplicable to decisions made by public employers with regard to their employees.” Id., at 996. Judge Reinhardt dissented, “agreeing] with the other circuits that the class-of-one theory of equal protection is applicable to public employment decisions.” Id., at 1010. We granted certiorari to resolve this disagreement in the lower courts, 552 U. S. 1136 (2008), and now affirm. II Engquist argues that the Equal Protection Clause forbids public employers from irrationally treating one employee differently from others similarly situated, regardless of whether the different treatment is based on the employee’s membership in a particular class. She reasons that in Olech, supra, we recognized in the regulatory context a similar class-of-one theory of equal protection, Brief for Petitioner 14-15; that the Equal Protection Clause protects individuals, not classes, id., at 15-17; that the Clause proscribes “discrimination arising not only from a legislative act but also from the conduct of an administrative official,” id., at 17; and that the Constitution applies to the State not only when it acts as regulator, but also when it acts as employer, id., at 23-29. Thus, Engquist concludes that class-of-one claims can be brought against public employers just as against any other state actors, id., at 29-32, and that differential treatment of government employees — even when not based on membership in a class or group — violates the Equal Protection Clause unless supported by a rational basis, id., at 32, 39-45. We do not quarrel with the premises of Engquist’s argument. It is well settled that the Equal Protection Clause “protect[s] persons, not groups,” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995) (emphasis deleted), and that the Clause’s protections apply to administrative as well as legislative acts, see, e. g., Raymond v. Chicago Union Traction Co., 207 U. S. 20,35-36 (1907). It is equally well settled that States do not escape the strictures of the Equal Protection Clause in their role as employers. See, e. g., New York City Transit Authority v. Beazer, 440 U. S. 568 (1979); Harrah Independent School Dist v. Martin, 440 U. S. 194 (1979) (per curiam); Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam). We do not, however, agree that Engquist’s conclusion follows from these premises. Our traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with unique considerations applicable when the government acts as employer as opposed to sovereign, lead us to conclude that the class-of-one theory of equal protection does not apply in the public employment context. A We have long held the view that there is a crucial difference, with respect to constitutional analysis, between the government exercising “the power to regulate or license, as lawmaker,” and the government acting “as proprietor, to manage [its] internal operation.” Cafeteria & Restaurant Workers v. McElroy, 367 U. S. 886, 896 (1961). This distinction has been particularly clear in our review of state action in the context of public employment. Thus, “the government as employer indeed has far broader powers than does the government as sovereign.” Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion). “[T]he extra power the government has in this area comes from the nature of the government’s mission as employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively and efficiently as possible.” Id., at 674-675. See also Connick v. Myers, 461 U. S. 138, 150-151 (1983) (explaining that the government has a legitimate interest “in ‘promoting] efficiency and integrity in the discharge of official duties, and [in] maintaining] proper discipline in the public service’” (quoting Ex parte Curtis, 106 U. S. 371, 373 (1882); alterations in original)). “The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Waters, supra, at 675 (plurality opinion). Given the “common-sense realization that government offices could not function if every employment decision became a constitutional matter,” Connick, supra, at 143, “constitutional review of government employment decisions must rest on different principles than review of... restraints imposed by the government as sovereign,” Waters, supra, at 674 (plurality opinion). In light of these basic principles, we have often recognized that government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large. Thus, for example, we have held that the Fourth Amendment does not require public employers to obtain warrants before conducting a search of an employee’s office. O’Connor v. Ortega, 480 U. S. 709, 721-722 (1987) (plurality opinion). See also id., at 732 (Scalia, J., concurring in judgment). Although we recognized that the “legitimate privacy interests of public employees in the private objects they bring to the workplace may be substantial,” we found that “[ajgainst these privacy interests... must be balanced the realities of the workplace, which strongly suggest that a warrant requirement would be unworkable.” Id., at 721 (plurality opinion). We have also found that the Due Process Clause does not protect a public employee from discharge, even when such discharge was mistaken or unreasonable. See Bishop v. Wood, 426 U. S. 341, 350 (1976) (“The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions”). Our public employee speech cases are particularly instructive. In Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968), we explained that, in analyzing a claim that a public employee was deprived of First Amendment rights by her employer, we must seek “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” We analyzed the contours of this balance more fully in Connick v. Myers, supra. We explained that the First Amendment protects public employee speech only when it falls within the core of First Amendment protection — speech on matters of public concern. We recognized that the “‘First Amendment does not protect speech and assembly only to the extent it can be characterized as political,’” and that the government therefore could not generally prohibit or punish, in its capacity as sovereign, speech on the ground that it does not touch upon matters of public concern, id., at 147 (quoting Mine Workers v. Illinois Bar Assn., 389 U. S. 217, 223 (1967)). But “[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices.” Connick, 461 U. S., at 146. As we explained, “absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Id., at 147 (citing Bishop, supra, at 349-350). Our precedent in the public employee context therefore establishes two main principles: First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context. Second, in striking the appropriate balance, we consider whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer. With these principles in mind, we come to the question whether a class-of-one theory of equal protection is cognizable in the public employment context. B Our equal protection jurisprudence has typically been concerned with governmental classifications that “affect some groups of citizens differently than others.” McGowan v. Maryland, 366 U. S. 420, 425 (1961). See, e. g., Ross v. Moffitt, 417 U. S. 600, 609 (1974) (“ ‘Equal protection’... emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable”); San Antonio Independent School Dish v. Rodriguez, 411 U. S. 1, 60 (1973) (Stewart, J., concurring) (“[T]he basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes”). Plaintiffs in such cases generally allege that they have been arbitrarily classified as members of an “identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979). Engquist correctly argues, however, that we recognized in Olech that an equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that she has been irrationally singled out as a so-called “class of one.” In Olech, a property owner had asked the village of Willow-brook to connect her property to the municipal water supply. Although the village had required only a 15-foot easement from other property owners seeking access to the water supply, the village conditioned Olech’s connection on a grant of a 33-foot easement. Olech sued the village, claiming that the village’s requirement of an easement 18 feet longer than the norm violated the Equal Protection Clause. Although Olech had not alleged that the village had discriminated against her based on membership in an identifiable class, we held that her complaint stated a valid claim under the Equal Protection Clause because it alleged that she had “been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” 528 U. S., at 564 (citing Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923), and Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989)). Recognition of the class-of-one theory of equal protection on the facts in Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle. That case involved the government’s regulation of property. Similarly, the cases upon which the Court in Olech relied concerned property assessment and taxation schemes. See Allegheny Pittsburgh, supra; Sioux City Bridge, supra. We expect such legislative or regulatory classifications to apply “without respect to persons,” to borrow a phrase from the judicial oath. See 28 U. S. C. §453. As we explained long ago, the Fourteenth Amendment “requires that all persons subjected to... legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.” Hayes v. Missouri, 120 U. S. 68, 71-72 (1887). When those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to ensure that all persons subject to legislation or regulation are indeed being “treated alike, under like circumstances and conditions.” Thus, when it appears that an individual is being singled out by the government, the specter of arbitrary classification is fairly raised, and the Equal Protection Clause requires a “rational basis for the difference in treatment.” Olech, 528 U. S., at 564. What seems to have been significant in Olech and the cases on which it relied was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed. There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations — at least not with regard to easement length, however typical such determinations may be as a general zoning matter. See id., at 565 (Breyer, J., concurring in result). Rather, the complaint alleged that the board consistently required only a 15-foot easement, but subjected Olech to a 33-foot easement. This differential treatment raised a concern of arbitrary classification, and we therefore required that the State provide a rational basis for it. In Allegheny Pittsburgh, cited by the Olech Court, the applicable standard was market value, but the county departed from that standard in basing some assessments on quite dated purchase prices. Again, there was no suggestion that the “dramatic differences in valuation” for similar property parcels, 488 U. S., at 341, were based on subjective considerations of the sort on which appraisers often rely, see id., at 338-342, 345. Sioux City Bridge, also cited in Olech, was the same sort of case, recognizing an equal protection claim when one taxpayer’s property was assessed at 100 percent of its value, while all other property was assessed at 55 percent, without regard to articulated differences in the properties. See 260 U. S., at 445-447. There are some forms of state action, however, which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise. Suppose, for example, that a traffic officer is stationed on a busy highway where people often drive above the speed limit, and there is no basis upon which to distinguish them. If the officer gives only one of those people a ticket, it may be good English to say that the officer has created a class of people that did not get speeding tickets, and a “class of one” that did. But assuming that it is in the nature of the particular government activity that not all speeders can be stopped and ticketed, complaining that one has been singled out for no reason does not invoke the fear of improper government classification. Such a complaint, rather, challenges the legitimacy of the underlying action itself — the decision to ticket speeders under such circumstances. Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernible or articulable reason, would be incompatible with the discretion inherent in the challenged action. It is no proper challenge to what in its nature is a subjective, individualized decision that it was subjective and individualized. This principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify. As Engquist herself points out, “[u nlike the zoning official, the public employer often must take into account the individual personalities and interpersonal relationships of employees in the workplace. The close relationship between the employer and employee, and the varied needs and interests involved in the employment context, mean that considerations such as concerns over personality conflicts that would be unreasonable as grounds for ‘arm’s-length’ government decisions (e. g., zoning, licensing) may well justify different treatment of a public employee.” Brief for Petitioner 48. Unlike the context of arm’s-length regulation, such as in Olech, treating seemingly similarly situated individuals differently in the employment context is par for the course. Thus, the class-of-one theory of equal protection — which presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality review — is simply a poor fit in the public employment context. To treat employees differently is not to classify them in a way that raises equal protection concerns. Rather, it is simply to exercise the broad discretion that typically characterizes the employer-employee relationship. A challenge that one has been treated individually in this context, instead of like everyone else, is a challenge to the underlying nature of the government action. Of course, that is not to say that the Equal Protection Clause, like other constitutional provisions, does not apply to public employers. Indeed, our cases make clear that the Equal Protection Clause is implicated when the government makes class-based decisions in the employment context, treating distinct groups of individuals categorically differently. See, e. g., Beazer, 440 U. S., at 593 (upholding city’s exclusion of methadone users from employment under rational-basis review); Martin, 440 U. S., at 199-201 (classification between teachers who had complied with a continuing-education requirement and those who had not is rational and does not violate the Equal Protection Clause); Murgia, 427 U. S., at 314-317 (upholding a mandatory retirement age — a classification based on age — under rational-basis review). The dissent’s broad statement that we “ex-cep[t] state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State,” post, at 610 (opinion of Stevens, J.), is thus plainly not correct. But we have never found the Equal Protection Clause implicated in the specific circumstance where, as here, government employers are alleged to have made an individualized, subjective personnel decision in a seemingly arbitrary or irrational manner. This is not surprising, given the historical understanding of the nature of government employment. We long ago recognized the “settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer.” McElroy, 367 U. S., at 896. The basic principle of at-will employment is that an employee may be terminated for a “‘good reason, bad reason, or no reason at all.’” Reply Brief for Petitioner 27. See Andrews v. Louisville & Nashville R. Co., 406 U. S. 320, 324 (1972) (“[T]he very concept of ‘wrongful discharge’ implies some sort of statutory or contractual standard that modifies the traditional common-law rule that a contract of employment is terminable by either party at will”). Thus, “[w]e have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information.” Waters, 511 U. S., at 679 (plurality opinion). See also Connick, 461 U. S., at 146-147 (“[Ordinary dismissals from government service... are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable” (citing Board of Regents of State Colleges v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, 408 U. S. 593 (1972); and Bishop, 426 U. S. 341)). “And an at-will government employee... generally has no claim based on the Constitution at all.” Waters, supra, at 679 (plurality opinion). See, e. g., Bishop, supra, at 349-350. State employers cannot, of course, take personnel actions that would independently violate the Constitution. See supra, at 598-600. But recognition of a class-of-one theory of equal protection in the public employment context — that is, a claim that the State treated an employee differently from others for a bad reason, or for no reason at all — is simply contrary to the concept of at-will employment. The Constitution does not require repudiating that familiar doctrine. To be sure, Congress and all the States have, for the most part, replaced at-will employment with various statutory schemes protecting public employees from discharge for impermissible reasons. See, e. g., 5 U. S. C. § 2302(b)(10) (2006 ed.) (supervisor of covered federal employee may not “discriminate... on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others”). See also Brief for United States as Amicus Curiae 20-21. But a government’s decision to limit the ability of public employers to fire at will is an act of legislative grace, not constitutional mandate. Indeed, recognizing the sort of claim Engquist presses could jeopardize the delicate balance governments have struck between the rights of public employees and “the government’s legitimate purpose in ‘promot[ing] efficiency and integrity in the discharge of official duties, and [in] main-tainting] proper discipline in the public service.’ ” Connick, supra, at 150-151 (quoting Ex parte Curtis, 106 U. S., at 373; alterations in original). Thus, for example, although most federal employees are covered by the Civil Service Reform Act of 1978, 92 Stat. 1111, Congress has specifically excluded some groups of employees from its protection, see, e. g., 5 U. S. C. § 2302(a)(2)(C) (excluding from coverage, inter alia, the Federal Bureau of Investigation, the Central Intelligence Agency, and the Defense Intelligence Agency). Were we to find that the Equal Protection Clause subjects the government to equal protection review for every allegedly arbitrary employment action, we will have undone Congress’s (and the States’) careful work. In concluding that the class-of-one theory of equal protection has no application in the public employment context— and that is all we decide — we are guided, as in the past, by the “common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Connick, supra, at 143. If, as Engquist suggests, plaintiffs need not claim discrimination on the basis of membership in some class or group, but rather may argue only that they were treated by their employers worse than other employees similarly situated, any personnel action in which a wronged employee can conjure up a claim of differential treatment will suddenly become the basis for a federal constitutional claim. Indeed, an allegation of arbitrary differential treatment could be made in nearly every instance of an assertedly wrongful employment action — not only hiring and firing decisions, but any personnel action, such as promotion, salary, or work assignments — on the theory that other employees were not treated wrongfully. See 478 F. 3d, at 995. On Engquist’s view, every one of these employment decisions by a government employer would become the basis for an equal protection complaint. Engquist assures us that accepting her view would not pose too much of a practical problem. Specifically, Engquist argues that a plaintiff in a class-of-one employment case would have to prove that the government’s differential treatment was intentional, that the plaintiff was treated differently from other similarly situated persons, and that the unequal treatment was not rationally related to a legitimate government purpose. Brief for Petitioner 36-39. And because a “governmental employment decision is... rational whenever the discrimination relates to a legitimate government interest,” it is in practice “difficult for plaintiffs to show that the government has failed to meet this standard.” Id., at 41. Justice Stevens makes a similar argument, stating “that all but a handful [of class-of-one complaints] are dismissed well in advance of trial.” Post, at 615. We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of-one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governments will be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through them in a search for the proverbial needle in a haystack. The Equal Protection Clause does not require “[t]his displacement of managerial discretion by judicial supervision.” Garcetti v. Ceballos, 547 U. S. 410, 423 (2006). In short, ratifying a class-of-one theory of equal protection in the context of public employment would impermissibly “constitutionalize the employee grievance.” Connick, 461 U. S., at 154. “The federal court is not the appropriate forum in which to review the multitude of personnel deci-. sions that are made daily by public agencies.” Bishop, 426 U. S., at 349. Public employees typically have a variety of protections from just the sort of personnel actions about which Engquist complains, but the Equal Protection Clause is not one of them. The judgment of the Court of Appeals is affirmed. It is so ordered. Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting. Congress has provided a judicial remedy for individuals whose federal constitutional rights are violated by state action, 42 U. S. C. § 1983. In prior cases, we have refused to craft new remedies for the violation of constitutional rights of federal employees, Bush v. Lucas, 462 U. S. 367 (1983), or for the nonconstitutional claims of state employees, Bishop v. Wood, 426 U. S. 341 (1976). But refusal to give effect to the congressionally mandated remedy embodied in §1983 would be impermissible. To avoid this result, the Court today concludes that Engquist suffered no constitutional violation at all, and that there was thus no harm to be remedied. In so holding, the Court — as it did in Garcetti v. Ceballos, 547 U. S. 410 (2006) — carves a novel exception out of state employees’ constitutional rights. In Garcetti, the Court created a new substantive rule excepting a category of speech by state employees from the protection of the First Amendment. Today, the Court creates a new substantive rule excepting state employees from the Fourteenth Amendment’s protection against unequal and irrational treatment at the hands of the State. Even if some surgery were truly necessary to prevent governments from being forced to defend a multitude of equal protection “class of one” claims, the Court should use a scalpel rather than a meataxe. I Our decision in Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam), applied a rule that had been an accepted part of our equal protection jurisprudence for decades: Unless state action that intentionally singles out an individual, or a class of individuals, for adverse treatment is supported by some rational justification, it violates the Fourteenth Amendment’s command that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” Óur opinion in Olech emphasized that the legal issue would have been the same whether the class consisted of one or five members, because “the number of individuals in a class is immaterial for equal protection analysis.” Id., at 564, n. The outcome of that case was not determined by the size of the disadvantaged class, and the majority does not — indeed cannot — dispute the settled principle that the Equal Protection Clause protects persons, not groups. See ante, at 597. Nor did the outcome in Olech turn on the fact that the village was discriminating against a property owner rather than an employee. The majority does not dispute that the strictures of the Equal Protection Clause apply to the States in their role as employers as well as regulators. See ante, at 597. And indeed, we have made clear that “the Equal Protection and Due Process Clauses of the Fourteenth Amendment, and other provisions of the Federal Constitution afford protection to employees who serve the government as well as to those who are served by them, and § 1983 provides a cause of action for all citizens injured by an abridgment of those protections.” Collins v. Harker Heights, 503 U. S. 115, 119-120 (1992). Rather, the outcome of Olech was dictated solely by the absence of a rational basis for the discrimination. As we explained: “Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment Question: Did administrative action occur in the context of the case? A. No B. Yes 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. Walter M. FREEMAN, Appellant, v. Edward J. BRENNER, Commissioner of Patents, Appellee. No. 20838. United States Court of Appeals District of Columbia Circuit. Argued Nov. 14, 1967. Decided May 7, 1968. Mr. Keith Misegades, Washington, D. C., for appellant. Mr. George C. Roeming, Atty., United States Patent Office, with whom Mr. Joseph Schimmel, Sol., United States Patent Office, was on the brief, for appellee. Before Wilbur K. Miller, Senior Circuit Judge, and Burger and McGowan, Circuit Judges. PER CURIAM: Appellant, dissatisfied with appellee’s disallowance of a patent application filed in 1963, brought suit in the District Court under 35 U.S.C. § 145. After the trial de novo permitted by that statute, the District Court, 261 F.Supp. 286, stating its reasons at length upon the record, refused to interfere with the action of the Patent Office. We, in turn, leave the judgment of the District Court undisturbed. - The issue is the familiar one of whether, within the meaning of 35 U.S.C. § 103, “ * * * 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 * * The claimed invention related to a parabolically-shaped bifocal lens, designed to provide enlarged and improved peripheral vision to cataract patients. The examiner and the Board of Appeals at the Patent Office concurred in believing that prior patents disclosed (1) lenses made of fused materials in such manner as to have a one-piece spherical surface embracing both near and distant vision, and (2) the enlargement of the plane of vision incident to a paraboloidal, as distinct from a spherical, lens surface. It was concluded that knowledge of these patents, with which appellant must be charged in law, rendered obvious the combination of their teachings effected in appellant’s claims. The trial de novo in the District Court consisted of the introduction of the Patent Office record, the testimony of appellant on direct examination, and the arguments of counsel. Appellant was afforded a full opportunity to explain why his claimed invention represented something more than a mere recognition of the potentialities in combination of the earlier discoveries, and why the Patent Office disallowance was insupportable. The District Court pursued the intricacies of this effort with close and careful attention and, after due reflection, set forth in detail the reasons why it was unpersuaded, of Patent Office irrationality requiring judicial correction. It referred in particular to the recent efforts of this court to delineate the standards by which the Patent Office’s judgments on the issue of obviousness are to be appraised. Stieg v. Commissioner of Patents, 122 U.S.App.D.C. 361, 353 F.2d 899 (1965); and see Zenith Radio Corp. v. Ladd, 114 U.S.App.D.C. 54, 310 F.2d 859 (1962). Those standards do not appear to us to have been affected by the Supreme Court’s subsequent consideration of the scope and meaning of Section 103 in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), upon which appellant has chiefly relied. Applying those standards to the record before us, we cannot say the District Court erred in concluding, in the language of Stieg, that “the new evidence taken on the trial de novo did not bring to [it] ‘thorough conviction’ that the judgment of the Patent Office was invalid * * In any event, the District Court was at pains to make clear that, even under a vastly broader scope of review than that heretofore contemplated by this court, it would still Have reached the same result; and we cannot say that, upon the evidence adduced before it, this view of the merits was unfounded. The judgment of the District Court is Affirmed. . This application purported to be a continuation of an application filed in 1957. The latter was rejected by the Patent Office as unpatentable because of obviousness. In the District Court the appellee raised the issue of res judicata, contending that the denial of the first application foreclosed the claims made in the second. The District Court did not find it necessary to reach this issue. . See Graham v. John Deere Co., 383 U.S. 1, 36, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Walker v. General Motors Corp., 362 F.2d 56, 60 n. 3 (9th Cir. 1966); Griffith Rubber Mills v. Hoffar, 313 F. 2d 1, 3 (9th Cir. 1963). 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_counsel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party WAYNE CHEMICAL, INC., Robert C. Tribolet and Thomas C. Tribolet, Plaintiffs-Appellees, v. COLUMBUS AGENCY SERVICE CORPORATION, Defendant-Appellant. No. 77-1281. United States Court of Appeals, Seventh Circuit. Argued Sept. 29, 1977. Decided Nov. 8, 1977. Clifford E. Simon, Jr., Fort Wayne, Ind., Duke W. Thomas, Columbus, Ohio, for defendant-appellant. Theodore L. Sendak, Atty. Gen., Indianapolis, Ind., David J. Brummond, Milwaukee, Wis., for amicus curiae. Sherrill William Colvin, Vincent J. Heiny, Fort Wayne, Ind., for plaintiffs-appellees. Before SWYGERT, CUMMINGS and TONE, Circuit Judges. TONE, Circuit Judge. Thomas C. Tribolet suffered an injury that made him a quadriplegic while he was 18 years old and still covered by a group medical insurance policy purchased by his father’s employer. The insurance agency through which the policy had been obtained had changed insurers 24 days earlier, and it ultimately developed that, under the policy issued by the new carrier, Thomas’ benefits would end on his 20th birthday. This result was not permitted under Indiana law. Also, the new insurer was not authorized to insure risks in Indiana, which made the agent liable under Indiana law if the insurer defaulted on its obligation, as it ultimately did. The determinative question on this interlocutory appeal is whether these provisions of Indiana' law favorable to Thomas were preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq., commonly known as ERISA. In this action by Thomas, joined by his father and his father’s employer, against the agent and others, the District Court held that ERISA did preempt state law but that a federal common law should be developed to fill the regulatory void created by preemption, and that under that federal common law Thomas’ insurance benefits could not be terminated. The court entered a preliminary injunction against the agent enjoining it from terminating coverage and also ordering it to make available to Thomas a policy of individual hospital and surgical insurance, as provided by the policy that had been superseded 24 days before Thomas’ injury. Wayne Chemical, Inc. v. Columbus Agency Service Corp., 426 F.Supp. 316 (N.D.Ind.1977). We modify the order and affirm it as modified, but rely on reasons different from those relied on by the District Court. The Initial Purchase of Insurance In 1974 plaintiff Wayne Chemical, Inc. purchased group medical insurance coverage for several of its employees and their families from an insurance salesman for a Fort Wayne, Indiana, insurance firm, defendant O’Rourke, Andrews & Maroney, Inc. One of these employees was plaintiff Robert C. Tribolet, father of Thomas. The O’Rourke firm obtained the insurance, through an intermediate broker or agent, from defendant Columbus Agency Service Corporation, also known as “CASCO.” The latter firm describes itself in its brief as “an insurance and health plan brokerage company,” which “acts as agents for entities such as National Multiple Employers Foundation and Association Life Insurance Company.” Apparently affiliated with CAS-CO in some way are the CASCO Insurance Trust Fund and its trustees, about whom the record tells us little else. CASCO placed the insurance with Association Life Insurance Company. The insurance salesman from the O’Rourke firm filled in, and Wayne’s president signed, an application for insurance addressed to Association Life. The printed application form included a section entitled “Employer Agreement and Subscription to Trust,” which recited that Wayne “does hereby apply for Group Insurance Benefits set forth in the proposal dated 4-29-74 and subscribes to the Agreement and Declaration of Trust establishing the . . .Insurance Trust Fund.” The proposal referred to is not in the record. No agreement and declaration of trust appears in the record, nor does it appear that Wayne was ever shown or ever signed such a document. As evidence of the insurance, Wayne received a “certificate of insurance,” which described the Trustees of the CASCO Insurance Trust Fund as the “policyholder,” defined the “certificateholder” as the insured employee, and referred to Group Policy No. 1438, and in which “certain provisions of the Policy [were] summarized.” Apparently neither Wayne nor its employees obtained copies of the policy. The Transfer tó a New Carrier The insurance continued with Association Life until July 1, 1975. Sometime earlier that year Wayne received an undated notice from CASCO bearing the salutation, “To our policyholders,” which stated: “We have been advised by the carrier of our CASCO Insurance program, the Association Life Insurance Company, that effective July 1, 1975, a rate increase of approximately 100% will be necessary. We wish to advise you that effective July 1,1975, a new carrier with increased coverages will be made available for continuance of your coverages. “We feel that the new plan will give you a much broader base of coverage and will be a part of a larger block of business; therefore, this should be a very distinct advantage in any cost calculations in the future. We will keep you advised as to the benefits of the new plan and the cost structure within the next ten days.” Subsequently Wayne received another undated notice from CASCO with the salutation, “To our policyholders,” which stated: “We are very pleased to announce that arrangements have been made to transfer your coverage to a new carrier. This coverage will be automatic as of July 1, 1975. “You will notice that your attached premium statements for July are still on the old basis. Effective Aug. 1, 1975, we will have an increase in the health premium of approximately 12V2%. Within a few weeks we will make available for you the option of maintaining your original plan with a few minor changes or a plan giving increased benefits. This has been a very monumental task and we want to thank you for your patience and understanding while these details have been worked out.” CASCO sent a copy of the latter notice to its agents with a separate notice advising the agents as follows: “We are attaching a copy of the letter that was mailed to our policyholders with their July premium statements. We will have a plan very similar to their present coverage with a few minor changes. We will also have two other plans carrying increased benefits that will also be available through another carrier. We feel that by utilizing two different carriers that we can give you a better cross section of coverages than by using one carrier and one plan.” The O’Rourke firm received copies of the latter two notices. All of these.notices were presumably sent before July 1, 1975 and in any event before Thomas Tribolet’s tragic accident on July 24 of that year. The last transition notice received by Wayne from CASCO bore the salutation, “Dear Policyholder,” and stated as follows: “As mentioned in our last letter to you, effective August 1 the rates for your group insurance have been increased. The new rates, as reflected on the accompanying billing, are 12V2% higher than before but affect only the health portion of your statement. Also, because of increasing costs we have been forced to raise the administration charge slightly. We hope you understand the necessity of these increases and realize that we are doing our utmost to offer you the best available coverage at the lowest possible cost. “There is also one change in your coverage which I think you will agree is an improvement. You now have a $100 calendar year deductible with a one-year accumulation period rather than a $50 deductible which had to be accumulated in 90 days. If you have any questions about this or any aspects of your coverage, please contact your agent who will be happy to answer them for you.” Neither Wayne nor the Tribolets were advised of the identity of the “new carrier” or of any adverse change in the terms of coverage until many months after the changeover. As late as November 5, 1975 Wayne, after having repeatedly requested copies of the new policy, received a letter from the O’Rourke firm stating as follows: “Per our discussion, enclosed are several outlines of your group insurance coverage. The only changes made in the program from the previous coverage was the deductible. I am told that new certificates are currently at the printers.” The “outline” referred to in the letter said nothing about any changes in policy terms with respect to either continuation of coverage for an insured disabled at the time coverage would otherwise terminate or con-vertability at that time without evidence of insurability. It ultimately appeared, however, that the new coverage was, with respect to these matters, materially less advantageous to beneficiaries than the Association Life policy. This fact was first disclosed in late December 1975 when CASCO sent Wayne a pamphlet describing the new coverage. The front cover of the pamphlet bears the title, “Comprehensive Major Medical Benefits,” the name CASCO combined with the initials NMEF in a pictorial trademark, and the name National Multiple Employers Foundation. On the back cover appears the recital, “Plan Design and Administration by CASCO” and the name Columbus Agency Service Corporation. The inside of the cover bears the following legend: CASCO NATIONAL MULTIPLE EMPLOYERS FOUNDATION THIS CERTIFICATE IS ISSUED TO EFFECTIVE DATE CERTIFICATE NUMBER R. C. Tribolet 6/1/74 005 PLAN DOCUMENT NUMBER 1438-36 EMPLOYER Wayne Chemical Company IS A PARTICIPATING EMPLOYER IN THE CASCO INDUSTRY TRUST. COVERAGE PROVIDED MAXIMUM $250.000.00 comprehensive MAJOR MEDICAL BASED ON BENEFITS IN THE PARTICIPATION AGREEMENT ON FILE. The record before us contains, in addition to the pamphlet just described, an unsigned document entitled “National Multiple Employers Foundation Plan and Trust Agreement” and dated January 1,1975, which did not come to light until after this action was filed. Named as parties are NMEF, Nicholas J. Dolwett, and Lorraine Dolwett, the Dolwetts being designated as trustees. The document purports to establish a trust fund to be funded by “contributing employers,” provides that the fund is to be administered “for the exclusive benefit of the participants in the plan, or their beneficiaries,” and recites, “The plan, the trust agreement and the Trust Fund created hereby are intended to comply with all the requirements of the Employee Retirement Income Security Act of 1974 as the same may be amended from time to time.” The provisions of the “plan” are not set forth. Neither Wayne nor the Tribolets knew of this document, the parties to it, or the plan or trust fund which it purported to establish. As we have noted, the communications Wayne received from CASCO indicated that Wayne was CASCO’s policyholder and that CASCO had merely shifted the insurance from one carrier to another. Wayne’s president testified that not until 1976, after Wayne had engaged counsel, was it informed for the first time “that we did not have insurance but some other program which I frankly do not understand.” He also testified that after the changeover Wayne continued to receive premium statements and to pay premiums as it had before: “We have operated as the initial major medical thing that we thought that we had.” Authorization To Transact Insurance Business in Indiana Transaction of insurance business in Indiana without a certificate of authority from the Commissioner of Insurance is forbidden, with certain exceptions. Ind.Code § 27 — 4-5-2(a). It appears to be undisputed that, neither NMEF nor the trust created by the agreement just described had an Indiana certificate, and that unless they were protected by the preemption provisions of ERISA, they were in violation of the Indiana unauthorized insurance statute. When an unauthorized insurer defaults on an insurance contract subject to Indiana law, any person who assisted in the procurement of the insurance is liable on the coverage. Ind.Code § 27-4-5-2(c)(2). Purported Termination of Coverage Following Thomas C. Tribolet’s accident, his hospital and medical bills were sent by Wayne to the O’Rourke firm, which in turn sent them to CASCO. Some of these bills were paid, apparently by NMEF, but the later ones were not. On December 23 CAS-CO notified the O’Rourke firm that Thomas’ coverage would terminate when he reached age 19 on January 4, 1976 and that expenses incurred after that date would not be reimbursed. The O’Rourke firm so advised Wayne by letter dated December 31, 1975. Later, however, the date on which reimbursement for expenses was to terminate was extended to January 4, 1977 by a letter written by an attorney on behalf of NMEF. A protest by counsel retained by the Tribolets that the termination-of-coverage provision of the CASCO-NMEF insurance was in conflict with Ind.Code § 27-8-5-10(B)(4) was rejected by NMEF’s attorney on the ground that ERISA preempted that state statute. NMEF is now, it is conceded, insolvent and unable to pay claims. This Action Plaintiffs initially brought this action in an Indiana state court against CASCO, which removed the case to the District Court on the ground of diversity of citizenship. NMEF, Nicholas J. Dolwett (designated as “Administrator”), and the O’Rourke firm were added as defendants after removal. Following an evidentiary hearing, the preliminary injunction described above was entered against CASCO, which is the only appellant. CASCO's position on appeal is that the District Court properly held that ERISA preempted the Indiana insurance statute but erred in determining liability on the basis of federal common law. In CASCO’s view, ERISA preempted Indiana regulation and that is the end of the matter. CASCO also argues that in any event the District Court should not have ordered it to prevent termination of insurance coverage or issue a conversion policy because it is impossible for CASCO to take such action. It is also argued that the injunction is void for vagueness, and that bond should have been required. I. This being an interlocutory appeal, our principal concern is whether it is probable that Thomas C. Tribolet will ultimately be entitled to the relief granted by the preliminary injunction. The other questions typically present in such an appeal, irreparable injury, etc., are not seriously in issue. Because of the view we take of the case, it is unnecessary for us to reach the issue on which the District Court rested its decision, viz., the rule to be adopted as federal common law when state regulatory statutes are preempted. We may, of course, affirm on any ground that finds support in the record. Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Wright v. Heizer, 560 F.2d 236 at 246 (7th Cir. 1977). A. The first issue is whether the provisions of the Indiana Insurance Code that would otherwise protect Thomas from termination of his benefits were preempted by § 514(a) of ERISA, 29 U.S.C. § 1144(a). The answer, in our view, is negative if Wayne was not a participant in an “employee benefit plan” that issued the insurance in question, as the quoted term is defined in the Act. In that event the transaction remained subject to state regulation. If, on the other hand, Wayne was a participant in such a plan, the state laws, “insofar as they may . relate to the plan,” were preempted, § 514(a). Although § 514(b)(2)(A) exempts state insurance regulation from preemption, that exemption is qualified by § 514(b)(2)(B), which states that an “employee benefit plan” is not “deemed to be an insurance company or other insurer.” 29 U.S.C. § 1144(b)(2). The definition that controls this case appears in § 3(1) of the Act,- 29 U.S.C. § 1002(1), which defines “employee welfare benefit plan,” the kind of “employee benefit plan” alleged to be present, in this case. To meet the definition, a plan must be “established or maintained by an employer or by an employee organization, or by both,” and even then it is such an “employee benefit plan” only “to the extent that [it] was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise” medical and hospital benefits. CASCO contends that “the National Multiple Employers Foundation Plan,” presumably referring to the plan purportedly established by the unsigned “National Multiple Employers Foundation Plan and Trust Agreement,” described above, was an “employee benefit plan” and that Wayne was a participant in that plan and maintained it by paying premiums. The District Court took the same view of the transaction, although, as we have noted, he went on to hold against CASCO on an unrelated ground. The record contains no indication, however, that any plan or trust created by the unsigned agreement was ever involved in the Wayne insurance transaction. NMEF itself appears to have provided the insurance to Wayne, for it is the entity or organization that, with CASCO, is named in the pamphlet summarizing coverage and that dealt with the Tribolets when they asserted their claim. NMEF seems not to have been an “employee benefit plan,” and CASCO does not argue that it was. We can perceive no plausible basis for treating insurance obtained for Wayne by CASCO from NMEF as covered by ERISA or as not subject to regulation by Indiana. Even if we assume that the plan purportedly created by the agreement was the insurer, and also assume that the plan was maintained or established by employers for the purpose of providing medical and hospital insurance rather than merely a proprietary insurance venture designed to take advantage of the void created by ERI-SA’s preemption of state regulation, the ERISA preemption provisions do not apply, because Wayne was not one of those employers. Wayne had no knowledge of the existence of such a plan or of NMEF until long after July 1975 and never entered into any agreement to establish any plan. Nor is there any basis in the record for CASCO’s contention that Wayne designated CASCO to act as Wayne’s agent for the purpose of bringing about participation by Wayne in a plan. See § 3(5), 29 U.S.C. § 1002(5). An employer does not become a participant in, or establish or maintain, a plan by applying for insurance and paying premiums for what it understands to be insurance without any knowledge that the plan exists. Establishing, maintaining, or participating in a plan requires an intent, which presupposes an awareness of the existence of the plan. Wayne was therefore not among the “participants” in the NMEF plan, if indeed there were any. That plan was an employee benefit plan, § 3(1) provides, only “to the extent” that it was maintained to provide “its participants or their beneficiaries” with insurance. If it provided insurance to Wayne, a nonparticipant, it was not acting as “an employee benefit plan,” and the transaction was therefore not subject to preemption but was left by § 514(b)(2)(A) to regulation by Indiana law. We find nothing in the legislative history of ERISA inconsistent with our interpretation of the establishment, maintenance, and participation requirements. Congress would have had no reason to exempt from state regulation insurance programs that are established and maintained by entrepreneurs for their own profit. This conclusion is confirmed by a recent report of the House Committee on Education and Labor, which, after a description of entrepreneurial programs such as the one before us, contains the following statement: “They are no more ERISA plans than is any other insurance policy sold to an employee benefit plan. “To the extent that such programs fail to meet the definition of an ‘employee benefit plan,’ state regulation of them is not preempted by section 514, even though such state action is barred with respect to the plans which purchase these ‘products.’ “We are mindful of the potentially harmful effects of an overly broad interpretation of the term employee benefit plan when coupled with the policy of section 514. As we have already noted, we do not believe that the statute and legislative history will support the inclusion of what amounts to commercial products within the umbrella of the definition. Where a plan is, in effect, an entrepreneurial venture, it is outside the policy of section 514 for reasons we have already stated. In short, to be properly characterized as an ERISA employee benefit plan, a plan must satisfy the definitional requirement of section 3(3) in both form and substance. We most earnestly encourage private persons, in particular the membership of the National Association of State Insurance Commissioners, and urge the Department of Labor, to ■take appropriate action to prevent the continued wrongful avoidance of proper state regulation by these entities.” Activity Report of the Committee on Education and Labor, H.R.Rep. No. 94-1785, 94th Cong., 2d Sess. 48 (1977). CASCO does not contend that at the time of Thomas’ accident the CASCO Insurance Trust was the employee benefit plan for purposes of ERISA. That contention would be unavailing for two reasons. First, Wayne never became a participant in that trust for the same reason it never became a participant in the NMEF plan: it had no knowledge of such a trust and was not a party to any agreement to establish, maintain, or participate in such a trust. Thus, even if that trust was an employee benefit plan and it, rather than CASCO, had placed the insurance with NMEF, which does not appear to have been the case, NMEF would not have been thereby exempted by reason of ERISA, from state regulation. Second, the ERISA exemption of a plan does not extend to the insurer, as the House Committee report just referred to recognizes, or to an insurance policy purchased by the plan from an insurer, as the First Circuit has held in Wadsworth v. Whaland, 562 F.2d 70 (1st Cir. 1977). NMEF and insurance policies issued by it are therefore subject to state regulation whether or not the insurance was purchased by an employee benefit plan, and CASCO, which assisted in placing the insurance with NMEF, is subject to whatever consequences attach to that action under Indiana law. B. Having concluded that the Indiana law governing the insurance transaction in issue here was not preempted by ERISA, we apply that law to the facts as they appear on the present record. The insurance was obtained from an unauthorized insurer acting in violation of Ind.Code § 27-4-5-2(a). When that insurer defaulted, CASCO, as a person who assisted in the procurement of the unauthorized insurance, is liable on the Tribolet claim under Ind.Code § 27-4-5-2(c)(2). The obligation that falls to CASCO, is defined by Ind.Code § 27-8-5-10(B)(4), which requires that a group hospital and medical policy providing for termination of coverage upon a dependent’s reaching a given age must also provide that nevertheless coverage does not terminate . . while the child is and continues to be both (a) incapable of self-sustaining employment by reason of mental retardation or physical handicap and (b) chiefly dependent upon the employee or member for support and maintenance.” The NMEF policy that became effective on July 1,1975 did not contain such a provision protecting a disabled dependent. The law will treat it as if it did and impose on CASCO the obligation to make good on the imputed provision. For the foregoing reasons it appears probable that CASCO will ultimately be held obligated to provide continuing hospital and medical coverage to Thomas C. Tribolet while he continues to be “both (a) incapable of self sustaining employment by reason of . physical handicap and (b) chiefly dependent upon the employee ■ for support and maintenance.” Ind.Code § 27-8-5-10(B)(4). The preliminary injunction may properly enforce this obligation pendente lite. II. CASCO also argues that it is unable to prevent coverage from terminating, as the preliminary injunction order now provides. This may be technically correct. The terms of the injunction order should be modified to reflect that CASCO is itself liable on the obligation to continue coverage and to enforce the obligation against CASCO pen-dente lite. The Association Life certificate in force until July 1, 1975 provided that an insured, upon termination of his eligibility as a spouse or child of the employee-certificate-holder, could convert to an individual policy of medical insurance in the form then being issued by the company. The NMEF policy did not include such a conversion privilege. The District Court ordered CASCO to furnish a conversion policy. Inasmuch as CASCO will be required by the preliminary injunction to provide the equivalent of continuing coverage, we see no need to reach the question of whether CASCO is also obligated to furnish a conversion policy and no need for the preliminary injunction to require that such a policy be made available. Whether the final judgment should include such a requirement will depend upon the consequences which Indiana law attaches to CASCO’s representation to Wayne Chemical that the new coverage would be no less favorable than the coverage which it superseded on July 1, 1975. Determination of that question should await the merits. The order should be modified to delete the requirement that CASCO issue a conversion policy. In view of our modification of the District Court’s injunction, it is unnecessary to address the argument that the injunction, insofar as it ordered CASCO to obtain a conversion policy for Thomas Tribolet, was vague and failed to comply with Rule 65(d), Fed.R.Civ.P. Finally, it was not error for the District Court to issue the preliminary injunction without a bond. Under appropriate circumstances bond may be excused, notwithstanding the literal language of Rule 65(c). Scherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir. 1972). Indigence is such a circumstance. Denny v. Health and Social Services Board, 285 F.Supp. 526, 527 (E.D.Wis. 1968) (three-judge court); Bass v. Richardson, 338 F.Supp. 478, 490 (S.D.N.Y.1971). The injunction was in favor riot of Wayne Chemical or Thomas’ father, but of Thomas himself. His indigency, proved by the testimony of his mother, justified the court in excusing bond. The order of the District Court is affirmed as modified. AFFIRMED AS MODIFIED. . CASCO, according to its letterhead, is a division of Dennis Clark & Associates, Inc. It appears in this action, however, in the name of Columbus Agency Service Corporation. . One of the exceptions applies when a master policy for group sickness and accident insurance was lawfully issued and delivered in a state “in which the insurer was authorized to do an insurance business to a group organized for purposes other than the procurement of insurance, and where the policyholder is domiciled or otherwise has a bona fide situs.” Ind. Code § 27-4-5-2(a)(5). This exception was apparently relied upon in connection with the insurance obtained from Association Life, which had been authorized to do business in Tennessee, where the CASCO Insurance Trust Fund claimed to have a bona fide situs, although it does not appear that the latter was organized for purposes other than the procurement of insurance. . When questioned by the court at oral argument about why the Indiana unauthorized insurer statute did not apply, counsel for CASCO did not contend that NMEF or'the NMEF trust met the requirements of that statute. He relied solely on ERISA’s preemption provision. . Section 514(a) provides that, except as provided in § 514(b), the provisions of ERISA’s Titles I (“Protection of Employee Benefit Rights”) and IV (“Plan Termination Insurance”) “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b).” 88 Stat. 897 (1974). Section 4(a) describes “any employee benefit plan . . established or maintained ... by any employer . . . or . . any employee organization ... or both” (in-or-affecting-commerce qualifications omitted). 88 Stat. 839 (1974). The exemptions of § 4(b), 88 Stat. 839-840 (1974), are not applicable in this case. . Section 514(b)(2): “(A) Except as provided in subparagraph (B), nothing in this title shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking or securities. “(B) Neither an employee benefit plan described in section 4(a), which is not exempt under section 4(b) (other than a plan established primarily for the purpose of providing death benefits), nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 88 Stat. 897 (1974). . The term “employee benefit plan” is defined in § 3(3) to mean either an “employee welfare benefit plan” or an “employee pension benefit plan” or a plan which is both. 88 Stat. 833 (1974). Inasmuch as no “employee pension benefit plan,” defined in § 3(2), id., as having to do with pension benefits or retirement income for employees, is involved here, we need to be concerned only with the kind of “employee benefit plan” that is an “employee welfare benefit plan.” . Section 3(1): “. . . any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits.....” 88 Stat. 833 (1974). . Although the court spoke of “the plan in question here” without naming it, 426 F.Supp. at 320, we interpret the reference as being to the purported plan described in the text, and CASCO appears to do so also. . “Employer” is defined in § 3(5) to mean “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employer in such capacity.” 88 Stat. 834 (1974). . As the program was held to be in Bell v. Employee Security Benefit Association, 437 F.Supp. 382 (D.Kan.1977). See also Activity Report of the Committee on Education and Labor, H.R.Rep. No. 94-1785, 94th Cong., 2d Sess. 48 (1977), cited in the text, infra. . The question we decide appears not to have been addressed in the reports or the debates on ERISA. Therefore, no purpose would be served by a discussion of the legislative history, which has been reviewed elsewhere. See, e. g., Hewlett-Packard Co. v. Barnes, 425 F.Supp. 1294, 1298-1300 (N.D.Cal.1977). . We do not construe the “Employer Agreement and Subscription to Trust” which was a part of the application for insurance addressed to Association Life as such an agreement. The application form recites that the applicant “subscribes to the agreement and declaration of trust establishing the . . . . Insurance Trust Fund,” but the fund is not named and no trust agreement appears to have ever been submitted to or signed by Wayne Chemical. Receipt by Wayne of the certificate of insurance issued by Association Life which showed “Trustees of the CASCO Insurance Trust Fund” as the “policyholder” could hardly constitute an agreement by Wayne to become a participant in an employee benefit plan. It is to be recalled also that the correspondence received by Wayne from CASCO about the change to a new carrier was addressed to “our policyholders.” 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_usc1sect	3	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STATES v. AMERICAN MEDICAL ASS’N et al. No. 7488. United States Court of Appeals for the District of Columbia. Argued Jan. 12, 1940. Decided March 4, 1940. Writ of Certiorari Denied June 3,194(5. See 60 S.Ct. 1096, 84 L.Ed. ■ —. Thurman Arnold, Asst. Atty. Gen., and John Henry Lewin and Grant W. Kelleher, Sp. Assts. to Atty. Gen., for appellants. William E. Leahy, Seth W. Richardson, John E. Laskey, and Charles S. Baker, all of Washington, D. C., and Edward M. Burke, of Chicago, 111., for appellees. Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices. GRONER, C. J. This appeal is taken from a judgment of the United States District Court sustaining a demurrer to an indictment for conspiracy in restraint of trade in the District of Columbia, in violation of Sec. 3 of the Sherman Anti-trust Act. The main purpose of the conspiracy as shown in the indictment was to impair or destroy the business and activities of Group Health Association, Inc., which had been organized in 1937, as a non-profit cooperative association for the provision of medical care apd hospitalization to its members and their dependents. The indictment is very long but, summarized, charges as follows: Group Health is an association of employees of certain executive departments of the Government employed in the District of Columbia, eighty per cent earning annual incomes not over $2,000. The association provides medical care and hospitalization to its members and their dependents on a risk sharing prepayment basis. Its funds are collected monthly in the form of dues. Medical care is provided by its medical staff, consisting of salaried physicians under the sole direction of a medical director. It provides a modern clinic and defrays, within certain limits, the expenses of hospitalization of its members and their dependents. The personal relationship ordinarily existing between doctor and patient exists between Group Health doctors and Group Health patients. Defendant American Medical Association is a corporation with a membership of 110,000 out of the total of 145,000 physicians in the United States. It is the only important national society representative of the medical profession in the country. It maintains a “Bureau of Medical Economics”, which has taken a leading part in carrying out the association’s policy of discouraging and suppressing group medical practice on a risk sharing prepayment basis. Defendant The Medical Society of the District of Columbia is a constituent society of American. Defendant Harris County Medical Society is a component society of American. Members of constituent and component societies are ipso facto members of American. Washington Academy of Surgery is an unincorporated association with its office in the District of Columbia. Of the individual defendants, five were officers of American, and the others members of District Society, most of the latter being officers or else members of the executive and hospital committees of the Society or members of the regular staffs of Washington City hospitals. American Association - and District Society possess power to exclude a doctor, disapproved by them, from attending and treating his patients in the Washington hospitals, which include all the hospitals in the District of Columbia in which private patients may be treated by doctors. By enforcing their rules of ethics and expelling members, they may deprive them of the essential privilege of consultation with other members. By granting or refusing approval of hospitals, they can control the ability of hospitals to obtain internes, and by threatening hospitals with the exercise of this power, they may control the members of medical staffs in each. To carry out these powers, on November 3, 1937, District Society adopted' the following resolution: “Whereas The Medical Society of the District of Columbia has an apparent means of hindering the successful operation of Group Health Association, Inc., if it can prevent patients of physicians in its employ being received in the local private hospitals; and “Whereas, The Medical Society of the District of Columbia has no direct control over the policies of such hospitals as determined by their lay boards of directors, except through its control of its own members serving on their medical staffs; and “Whereas, conflicts between the Medical Society of the District of Columbia and any local hospitals arising from an attempt to enforce the provisions of Chapter IX, Article IV, Section 5, of its Constitution should be assiduously avoided, if possible, because of the unfavorable publicity that would accrue to its own members; therefore, be it “Resolved, That the Hospital Committee be, and is hereby, directed to give careful study and consideration to all phases of this subject and report back to the Society, at the earliest practicable date, its recommendations as to the best way of bringing this question to the attention of the medical boards and boards of directors of the.various local hospitals in such a manner as to insure the maximum amount of practical accomplishment with the minimum amount of friction and conflict.” Subsequently, the conspiracy was discussed at meetings held by members and committees of District Society, with the purpose of “hindering” Group Health from procuring and retaining on its medical staff qualified doctors by threatening with disciplinary action any members of District Society who should either join Group Health’s staff or consult with physicians on its staff, and with the purpose of hindering and obstructing members of Group Health from obtaining access to hospital facilities and obstructing the doctors on its staff from treating and operating upon patients in Washington hospitals, and for the purpose of inducing Washington hospitals to boycott Group Health and its doctors. A “white list” of approved organizations, groups, and individuals was circulated, with the name of Group Health omitted, — all for the purpose of threatening with disciplinary action any member of the District Society who worked for Group Health or consulted with any doctor on its staff and any hospital which admitted any Group Health doctor to its courtesy staff; — the general purpose of the conspiracy being to restrain doctors in the District of Columbia in the pursuit of their calling and to restrain the hospitals in the operation of their business and to destroy Group Health in the performance of its functions. Disciplinary action was taken against two District Society members on Group Health’s staff. One was induced to resign from the staff, the other was expelled from the society. Harris County Society opened disciplinary action against one of its members on the staff. District Society opened disciplinary action against a specialist who consulted with a Group Health doctor. Demand was made on the hospitals that they receive only members of the American Medical Association on their staffs. Upon recommendation of Washington Academy of Surgery, a surgeon was excluded from hospital staffs principally because he was working for Group Health. By threatening to deprive another doctor of courtesy staff privileges, defendants induced a Group Health doctor to resign his position. The conspiracy is charged to have had as its background the long continued policy of opposition on the part of American Medical Association to risk sharing plans for medical service, growing out of the fear of its members of business competition from doctors connected with such organizations. Each defendant is charged to have knowingly participated in the formation and furtherance of the plan pursuant to the common purpose. The several defendants demurred on a number of grounds, attacking not only the substance but the form of the indictment. The District Court sustained the demurrer (1) because the practice of medicine is not a trade within the meaning of Sec. 3 of the Sherman Act; (2) because the indictment is vague and uncertain and fails to charge clearly commission of any crime. The United States have appealed under the provisions of the Act of March 3, 1901, ch. 854, 31 Stat. 1341, D.C.Code 1929, Tit. 6, sec. 355. The case divides itself into three main problems: 1. Does the indictment charge a combination or conspiracy in restraint of “trade” as that term is used in Sec. 3 of the Sherman Act? 2. If it does, is the restraint charged an unreasonable one which would be illegal under the Act? 3. Is the indictment defective in form? Sec. 3 of the statute reads as follows: “Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce in * * * the District of Columbia * * * is hereby declared illegal. Every person who shall make' any such contract or engage in any such combination or conspiracy, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars [$5,000], or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.” The trial court was of opinion that the practice of medicine and the business of Group Health and the hospitals do not constitute “trade” within the intent of the statute. The question is new, at least to the extent that there is no case in which, in the circumstances existing here, it has been decided, but a careful consideration of the language of the Act, its legislative background and the various statements of the Supreme Court concerning the source from which the congressional purpose may be gathered, leads us to conclude the trial court was in error. The phrase “restraint of trade” had its genesis in the common law, and its legal import and significance is declared again and again in the decisions of English courts, both before and after the date of our independence, as well as in American decisions in many of the States. The Supreme Court has said that Congress passed the Sherman Act with this common law background in mind. And so in the Standard Oil case, Chief Justice White traces its use to the common law. Thus, at the top of page 51 of 221 U.S., 31 S.Ct. at page 512, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann. Cas.1912D, 734, he says: “It is certain that those terms, at least in their rudimentary meaning, took their origin in the common law, and were also familiar in the law of this country prior to and at the time of the adoption of the act in question.” And again: “It is certain that at a very remote period the words ‘contract in restraint of- trade’ in England came -to refer to some voluntary restraint put by contract by an individual on his right to carry on his trade or calling. Originally all such contracts were considered to be illegal,.because it was deemed they were injurious to the public as well as to the individuals who made them.” And still again, 221 U.S. at page 59, 31 S.Ct. at page 515, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas. 1912D, 734: “Let us consider the language of the 1st and 2d sections, guided by the principle that where words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense unless the context compels to the contrary. * * * “In view of the common law and the law in this country as to restraint of trade, which we have reviewed, and the illuminating effect which that history must have under the rule to which we have referred, we think it results: “a. That the context manifests that the statute was drawn in the light of the existing practical conception of the law of restraint of trade, because it groups as within that class, not only contracts which were in restraint of trade in the subjective sense, but all contracts or acts which theoretically were attempts to monopolize, yet which in practice had come to be considered as in restraint of trade in a broad sense.” Similar statements are to be found in United States v. American Tobacco Co., 221 U.S. 106, 179, 31 S.Ct. 632, 55 L.Ed. 663; Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232; Eastern States Retail Lumber Dealers Ass’n v. United States, 234 U.S. 600, 610, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788; United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, 278, 279, 46 L.R.A. 122, affirmed 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136; United States Tel. Co. v. Central Union Tel. Co., 6 Cir., 202 F. 66, 70. There are like statements in the debates in Congress. 21 Cong. Rec. 3146, 3148, 3152. And see Judge Taft’s opinion in the Addyston Pipe Co. case, where he said[85 F. 278]: “It is certain that, if the contract of association which bound the defendants was void and unenforceable at the common law because in restraint of trade, it is within the inhibition of the statute * * In Leonard v. Abner-Drury Brewing Co., 25 App.D.C. 161, 174, we said as much with respect to Sec. 3 of the Act. It must, therefore, be considered that the scope of “restraint of trade” in Sec. 3 is to be measured by its use at common law. The common law rule was applied principally to contracts whereby a man promised not to engage in his occupation, including the practice of medicine, and in many English cases such a restraint on the practice of medicine was described as a contract in “restraint of trade”. Defendants contend, however, that whatever the English usage, the word “trade” had in this country a definite and well understood meaning, and as used in the Sherman Act was confined to transportation and the buying, selling, or exchanging of commodities and in any case was not intended to apply to any employment or business carried on by the “learned professions”. The determination of this aspect of our problem lies in the answer to this proposition. In Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 52 S.Ct. 607, 76 L.Ed. 1204, it was held the words “trade” and “commerce” had a broader meaning in Sec. 3 of the Act than in Sec. 1, 15 U.S. C.A. §§ 3, 1, and that, under the paramount power of Congress to legislate for the District of Columbia, the use of the words in that section should be held to embrace the exercise of that paramount power to its fullest extent. — “We are, therefore, free to interpret section 3 dissociated from section 1 as though it were a separate and independent act, and, thus viewed, there is no rule of statutory construction which prevents our giving to the word ‘trade’ its full meaning, or the more extended of two meanings, whichever will best manifest the legislative purpose.” 286 U.S. at page 435, 52 S.Ct. at page 609, 76 L.Ed. 1204. Cleaners and dyers in the District had formed a combination to keep up prices, and the United States brought suit to enjoin the agreement and reestablish competition. The defendants insisted their arrangement was not a violation of Sec. 3 because they were not engaged in trade, relying upon National League Clubs v. Federal Baseball Clubs, 50 App.D.C. 165, 168, 269 F. 681, 684, holding that “trade” connotes the transfer of something, “whether it be persons, commodities, or intelligence, from one place or person to another”. The opinion ignored the citation, doubtless because the baseball case was brought under Section I — the interstate commerce section of the Act — and Justice Sutherland, who wrote the opinion, rejected this restricted definition as applied to Sec. 3. In support of a definition to include the cleaning business, he quoted from Justice Story’s opinion in The Nymph, 18 Fed.Cas. No. 10,388, page 506: “ * * * the word ‘trade’ is often and, indeed, generally used in a broader sense, as equivalent to occupation, employment, or business, whether manual or mercantile. Wherever any occupation, employment, or business is carried on for the purpose of profit, or gain, or a livelihood, not in the liberal arts or in the learned professions, it is constantly called a trade.” The learned trial judge felt that the italicized words should be regarded as an authoritative statement of the Supreme Court that the professions were not trades and therefore not within the intent of the Act. But we think this by no means follows. The Court had before it only the problem whether “trade” was broad enough to include the cleaning and dyeing of clothes, and held it was. To reinforce its reasoning, the Court quoted language which happened to exclude the learned professions, but this limitation was not responsive to the question at hand and was purely casual, and in the circumstances ought not, we think, to be regarded as a proper guide in deciding the important question in this case. The same might be said of Federal Trade Com. v. Raladam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191, where Justice Sutherland said that physicians followed a profession and not a trade. He was dealing with a case of interstate commerce and simply pointed out the obvious fact that doctors were not in the patent medicine trade, and could not be in competition with vendors of medicine within the sense of the Trade Commission Act. There, he was using the word “trade” in its narrowest sense, a restriction which, as we have seen, he later rejected in regard to Sec. 3 of the Sherman Act. The common law cases which shed light on the question are all of a type. A physician, a surgeon, or a dentist has an established practice in a community. He takes on an assistant, or a partner, or else sells his practice to another of his own profession. In the first two cases he wants to protect his own practice, and in the third case the buyer wants protection from subsequent competition by the seller. Consequently, the assistant, or partner, or seller, as the case may be, promises for a consideration not to practice within the community or within a designated distance. This promise is a voluntary restraint on the pursuit of a man’s calling, and in the circumstances, the public policy described by Chief Justice White in the Standard Oil case becomes involved. The restraint will be upheld only if it (1) is partial; (2) is made for an adequate consideration; and (3) is reasonable as a protection of the good will of another’s professional practice. Holbrook v. Waters, 9 How.Prac.,N.Y., 335. In England such a contract was constantly referred to as involving the doctrine of “restraint of trade”. See Davis v. Mason, 5 T.R. 118, 101 Eng. Rep. 69; Hayward v. Young, 2 Chitty 407; Atkyns v. Kinnier, 4 Ex. 776, 154 Eng. Rep. 1429; Gravely v. Barnard, L.R. 18 Eq. 518. In all of the above the lawyers who raised the point and the judges who passed upon it referred to the public policy as the doctrine of restraint of trade, contracts in restraint of trade, or in partial restraint of trade. In Horner v. Graves, 7 Bing. 735, 131 Eng. Rep. 284, defendant had promised not to practice within 100 miles of York. The opinion of Tindall, C. J., recognizes the occupation of surgeon-dentist as a profession, but in considering the validity of the contract, he uses the words “profession”, “business”, and “trade” interchangeably. American cases decided before passage of the Sherman Act recognize and follow the reasoning of these English cases. See Cook v. Johnson, 47 Conn. 175, 36 Am.Rep. 64, which involved a dentist’s contract. There the court said that it belonged to the class of contracts in restraint of trade. To the same effect, see Haldeman v. Simonton, 55 Iowa 144, 7 N.W. 493; Gilman v. Dwight, 13 Gray, Mass., 356, 359, 74 Am.Dec. 634. In the case last named the court said: “There is nothing in the nature of the business or profession to which the contract relates, which takes it out of the ordinary rules applicable to contracts in partial restraint of trade. The cases are numerous in the books, in which similar contracts entered into by attorneys, solicitors, apothecaries, dentists and surgeons have been upheld and enforced.” See also Dwight v. Hamilton, 113 Mass. 175, and Mandeville v. Harman, 42 N.J.Eq. 185, 7 A. 37. More modern cases are Webster v. Williams, 62 Ark. 101, 34 S.W. 537; Rakestraw v. Lanier, 104 Ga. 188, 30 S.E. 735, 69 Am.St.Rep. 154; Gordon v. Mansfield, 84 Mo.App. 367; State v. Calhoun, Mo.App., 231 S.W. 647; Greenfield v. Getman, 140 N.Y. 168, 35 N.E. 435; Hulen v. Earel, 13 Okl. 246, 73 P. 927; Turner v. Abbott, 116 Tenn. 718, 94 S.W. 64, 6 L.R.A.,N.S., 892, 8 Ann.Cas. 150; Randolph v. Graham, Tex.Civ.App., 254 S.W. 402; Erikson v. Hawley, 56 App.D.C. 268, 12 F.2d 491; and in Styles v. Lyon, 87 Conn. 23, 86 A. 564, 566, the court said: “The defendant insists there is a distinction between a business and a profession; that, while the period of restriction as to a business may be unlimited, the rule should not apply to a profession, since it is a purely personal relation whose benefits cease upon death or the cessation from practice. We do not think the distinction tenable. A profession partakes on its financial side of a commercial business, and its good will is often a valuable asset.” The indubitable effect of all these cases, English and American, is to enlarge the common acceptation of the word “trade” when embraced in the phrase “restraint of trade” to cover all occupations in which men aré engaged for a livelihood. We think it makes no difference that, after the practice of medicine had been recognized as embraced in the doctrine of “restraint of trade”, Davis v. Mason, supra, a number of judges preferred to speak in broader terms of “public policy” and the like, without using the word “trade”. The ■foundation of the rule in restraint of trade cases is the rule of public policy, and always was from Mitchel v. Reynolds, [1711] 1 P. Wms. 181, 24 Eng.Rep. 347, on down, without distinction based on type of occupation involved. Perhaps the most illuminating of the English cases is Pratt v. British Medical Association, [1919] 1 K.B. 244. The case was a tort action to' recover damages for.molesting plaintiff doctors in the pursuit of their calling. The facts there and here are strikingly similar. The plaintiffs had joined the staff of an organization known as Coventry Provident Dispensary, which had fallen under the ban of the medical society because the members of the latter were opposed to what was called contract practice. The doctors who joined the staff of the organization were expelled from the society for violation of its rules of ethics and other members of the society were forbidden to consult with them on pain of expulsion. A “black list” was published in the British Medical Journal, and the court found that the effect was to boycott the plaintiffs in their practice, greatly to their injury, and likewise that the purpose of the boycott was to increase the - area of practice and the financial returns of the members of the society. On this subject the court said (p. 272) :■ “If the Coventry Dispensary had been destroyed as a lay organization, then the local doctors could obviously have taken such steps as would have increased their area of private practice, and their emoluments would have gained a corresponding expansion. This was the fundamental object of the defendants. The non-participation in such aim by the plaintiffs was the head and front of their offending.”- And considering the validity of the action of the defendants and their right by means of their own rules or canons to impose a restraint upon non-conforming physicians, the court said (p. 274) : “The public interest must be regarded conjointly with the interests of individuals when restraint of trade is in question. Recent illustrative decisions will be found in Neville v. Dominion of Canada News Co. (2) and Horwood v. Millar’s Timber and Trading Co. (3) The doctrine of “restraint of trade” has been applied in many directions. The restraint may exist in a contract between two parties, or in rules purporting to bind many individuals. See, for example, Hilton v. Eckersley (4) ; Hornby v. Close (5); Old v. Robson (6) ; and Cullen v. Elwin. (7) Many decisions were considered in the well-known case of Russell v. Amalgamated Society of Carpenters and Joiners. (8) Upon considering the rules in question I have arrived at the conclusion that they are in restraint of trade, and are void on the ground of public policy. They gravely, and in-my view unnecessarily, interfere with the freedom of medical men in the pursuit of their calling, and they are, I think, injurious to the interests of the community at large. It may well be that the opinion T have just expressed will, if upheld, destroy the cogency of the defendants’ scheme of boycott; but it leaves them with the safer and more kindly weapons of legitimate persuasion and reasoned argument.” The critical comments contained in Ware and De Freville, Ltd. v. Motor Trade Association, [1921] 3 K.B. 40, do not overrule or disapprove the basic doctrine of the Pratt case, and are directed solely at some of its language on matters not pertinent here. We think enough has been said to demonstrate that the common law governing restraints of trade has not been confined, as defendants insist, to the field of commercial activity ordinarily defined as “trade”, but embraces as well the field of the medical profession. And since, as we think, we are required by the decisions of the Supreme Court to look to the common law as the chart by which to determine the class and scope of offenses denounced in Sec. 3, it follows that we must hold that a restraint imposed upon the lawful practice of medicine, — and a fortiori- — upon the operation of hospitals and of a lawful organization for the financing of medical services to its members, is just as much in restraint of trade as if it were directed against any other occupation or employment or business. And, of course, the fact that defendants are phy - sicians and medical organizations is of no significance, for Sec. 3 prohibits “any person” from imposing the proscribed restraints. Congress did not provide that one class, any more than another, might impose restraints or that one class, any more than another, might be subj ected' to restraint. This brings us, then, to consider whether the indictment shows unreasonable restraints. The charge, stated in condensed form, is that the medical societies combined and conspired to prevent the successful operation of Group Health’s plan, and the steps by which thi£ was to be effectuated were as follows: (1) to impose restraints on physicians affiliated with Group Health by threat of expulsion or actual expulsion from the societies; (2) to deny them the essential professional contacts with other physicians ; and (3) to use the coercive power of the societies to, deprive them of hospital facilities for their patients. Sufficient facts are stated to demonstrate that, unchecked, this exertion of power will necessarily accomplish the abandonment of the co-operative plan of medical service, as well as destroy the livelihood of dissident doctors, because the general restraint thus applied would make impossible the continued operation of the one or the successful practice of medicine by the others. Defendants say that what they are charged with doing amounts to no more than the regulation of membership in the society and the selection of the persons with whom they which to associate; that under their rules disobedient members may lawfully be disciplined and that disciplination does not amount to unreasonable restraint. This may very well be true, and in considering the contention we are not unmindful of the importance of rules of conduct in medical practice, rules which can best be made by the profession itself. We recognize, in common with an almost universal public opinion, that in the last half century, through this means, the quack and the charlatan have been largely deprived of the opportunity of preying on the unfortunate and the credulous. We also recognize that in personal conduct and in professional skill the rules and canons, so established have aided in raising the standards of medical practice to the advantage of the whole country. We are mindful of a generally known fact that under these rules and standards there has developed an esprit de corps largely as a result of which the members of the profession contribute a considerable portion of their time to the relief of the unfortunate and the destitute..All of which may well be acknowledged to their credit. Notwithstanding these important considerations, it cannot be admitted that the medical profession may 'through its great medical societies, either by rule or disciplinary proceedings, legally effectuate restraints as far reaching as those now charged.» “An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes on the form of a conspiracy, and may be prohibited or punished, if the result be hurtful to the public or to the individual” against whom it is directed. Eastern States Retail Lumber Dealers Ass’n v. United States, 234 U.S. 600, at page 614, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A.1915A, 788. If there is any justification for the restraint, so as to make it reasonable as a regulation of professional practice, it must be shown in evidence as a defense, since it does not appear in the indictment. Restraints prohibited by Sec. 3 of the Sherman Act are those which unduly hinder a person from employing his talents, industry, or capital in any lawful undertaking and thus keep the public from receiving goods and services as freely as it would without such restraints. Enough has been said to show that the restraint here charged would restrict the common liberty of Group Health, the doctors, and the hospitals from engaging in the pursuit of their respective functions. If on the trial the charge of confederation to this end is sustained, defendants’ method of reaching their objective may be thereby defeated, but if the objective is wise — as they insist — they still have left, as was said by the English judge in the Pratt case, the safer and more kindly weapons of legitimate persuasion and reasoned argument. In the proper use of these, much, as we think, may be accomplished to avoid the growing movement toward professional regimentation. Or, this opportunity neglected, members of the medical associations in the District of Columbia perhaps may find in Sec. 3, as we construe it, their only protection in the right to practice on a fee for service basis. ■ In the light of what has been said, we consider the numerous cases involving the reasonable operations of trade associations and trade unions as inapplicable. Organizations and rules which have as their purpose the improvement of conditions in any particular trade or occupation, and the regulation of relations between traders, are, as we have just pointed out, beneficial rather than detrimental to the public interest. But when these same organizations go so far as to impose unreasonable restraints on the operations in their field, they become subject to the prohibition of the Sherman Act. Sugar Institute v. United States, 297 U.S. 553, 597-600, 56 S.Ct. 629, 80 L.Ed. 859. Appellees rely on the following state court decisions: Harris v. Thomas, Tex.Civ.App., 217 S.W. 1068; Porter v. King County Medical Society, 186 Wash. 410, 58 P.2d 367; Irwin v. Lorio, 169 La. 1090, 126 So. 669; Weyrens v. Scotts Bluff County Medical Society, 133 Neb. 814, 277 N.W. 378; Strauss v. Marlboro County Hospital, 185 S.C. 425, 194 S.E. 65; Newton v. Board of Commissioners, 86 Colo. 446, 282 P. 1068; McDonald v. Massachusetts General Hospital, 120 Mass. 432, 21 Am.Rep. 529; Branagan v. Buckman, 67 Misc. 242, 122 N.Y.S. 610; and Olander v. Johnson, 258 Ill.App. 89. They insist these cases sustain the view that disciplinary action taken against one of their number by an association of physicians pursuant to its canons of ethics is permissible and does not violate the common rights either of the individual or of the public. We have examined these cases and are of opinion that, with the exception of the Porter and Weyrens cases, none is apposite. Those two cases do tend to sustain the actions of medical societies in their attempt to control the scale of medical fees, but in so far as they hold such action to be lawful and deny any right to the injured individual to obtain redress, we cannot accept them as. binding or even persuasive authority in the decision of what is or is not lawful under the Sherman Act. The doctrine of restraint of trade was not involved in either case. In the Weyrens case, an expelled physician asked a court to order his-reinstatement in his medical society, before he had exhausted his remedies within the organization. In the Porter case, a layman lost his job because defendants had induced his employers to close their business. The lawfulness of the inducements was considered solely in the light of what a society might do with respect to its membership, and selfish motives were deemed immaterial. In our view, the Sherman Act must be applied with respect to public interests, and this raises broader issues than these two cases contain. At the risk of tedious repetition, we repeat that the charge made here, and for the purposes of the demurrer admitted, is that the societies sought to restrain an association of persons of modest means from receiving medical services at lower cost and to coerce doctors and hospitals to this end. The charge may be wholly unwarranted and the facts, when they are disclosed on the trial, may show an entirely different state of affairs, but for present purposes we must take the charge as though its verity were established; and in that light, it seems to us clear that the offense is within the condemnation of the statute. It certainly cannot be doubted that Congress intended to exert its full power, in the public interest, to set free from unreasonable obstruction the exercise of those rights and privileges which are a part of our constitutional inheritance, and these include immunity from compulsory work at the will of another, the right to choose an occupation, the right to engage in any lawful calling for which one has the requisite capacity, skill, material, or capital, and thereafter the free enjoyment of the fruits of one’s labors. Congress undoubtedly legislated on the common law principle that every person has individually, and that the public has collectively, a right to require the course of all legitimate occupations in the District of Columbia to be free from unreasonable obstructions; and likewise in recognition of the fact that all trades, businesses and professions, which prevent idleness and exercise men in labor and employment for the benefit of themselves and their families and for the increase of their substance, are desirable in the public good and any undue restraint upon them is wrong and is immediate and unreasonable and, therefore, within the purview of the Sherman Act. For illustrations of this principle, see Loewe v. Lawlor, 208 U.S. 274, 28 S.Ct. 301, 52 L.Ed. 488, 13 Ann.Cas. 815; Eastern States Lumber Dealers Ass’n v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490, L.R.A. 1915A, 788; Lawlor v. Loewe, 235 U.S. 522, 35 S.Ct. 170, 59 L.Ed. 341; Duplex Printing Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; Bedford Cut Stone Company v. Stone Cutters Association, 274 U.S. 37, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L.R. 791; Montague v. Lowry, 193 U.S. 38, 24 S.Ct. 307, 48 L.Ed. 608; United States v. Brims, 272 U.S. 549, 47 S.Ct. 169, 71 L.Ed. 403. In the Eastern States case, an association of retail lumber dealers, in a desire to protect their local retail trade against competition by wholesalers selling to consumers within local territory, agreed to report any information received by anyone of them showing Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number. Answer:
sc_respondent	106	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. COLD METAL PROCESS CO. et al. v. UNITED ENGINEERING & FOUNDRY CO. No. 76. Argued February 28, 1956. Decided June 11, 1956. William H. Webb argued the cause for petitioners. With him on the brief were Clarence B. Zewadski and William Wallace Booth. Jo. Baily Brown argued the cause for respondent. With him on the brief was Julian Miller. Mr. Justice Burton delivered the opinion of the Court. This is a multiple claims action in which the District Court entered a judgment disposing of but one claim. Pursuant to Rule 54 (b) of the Federal Rules of Civil Procedure, as amended in 1946, that court expressly determined that there was no just reason for delay and expressly directed the entry of judgment. Thereupon, an appeal was taken to the Court of Appeals, and the issue before us is whether the latter court has jurisdiction to entertain that appeal under 28 U. S. C. § 1291, although an unadjudicated counterclaim awaits disposition in the District Court. The issue is comparable to that decided in Sears, Roebuck & Co. v. Mackey, ante, at 427, except that here the unadjudicated claim is a counterclaim arising in part out of the same transactions and occurrences as the adjudicated claim. By applying the reasoning used in the Sears case, we reach a like conclusion here and uphold the jurisdiction of the Court of Appeals. While the counterclaim arises in part out of the same transactions as does the adjudicated claim, it was filed long after the principal proceeding was begun, and is in the nature of an action ancillary to the principal proceeding and bears a separate case number. Upon request of both parties, the District Court has removed the counterclaim from the trial calendar, without prejudice to either party, leaving it subject to reinstatement for trial at any time by order of the court upon its own initiative, or upon request of either party after reasonable notice. A brief review of the entire proceedings and a disclosure of its subject matter throws light on the relationship between the adjudicated claim and the counterclaim. In 1927, petitioner, The Cold Metal Process Company, an Ohio corporation, and United Engineering & Foundry Company, a Pennsylvania corporation, entered into a contract for the purpose of securing a patent in the name of Cold Metal relating to a certain type of steel rolling mill and of granting to United an exclusive license to make, use and sell mills under such patent. To that end, the parties contributed claims under their respective patent applications and it was agreed that the license should be granted when the patent was issued. The parties also agreed to try, by negotiation, to determine the amount of the payment by United for the license. If the parties could not agree on that point, the subject was to be submitted to arbitration in a manner specified in the contract. In 1930, the patent was issued but Cold Metal refused to treat the 1927 contract as conferring an exclusive license on United. Cold Metal maintained that United was not a licensee until the amount due Cold Metal had been determined and paid. United, on the other hand, treated the contract as an enforceable exclusive license under which the license fee was to be determined later. After litigation not now material, Cold Metal, in 1934, instituted the present proceeding, Equity No. 2991, against United in the United States District Court for the Western District of Pennsylvania. Cold Metal asked (1) for an injunction restraining United from prosecuting certain suits, pending in Ohio and elsewhere, founded upon United's claim of exclusive rights under the patent, and (2) for determination of the amount to be paid by United under the 1927 contract. The court declined to issue a preliminary injunction, 9 F. Supp. 994, but Cold Metal appealed from such denial and, in 1935, obtained a reversal directing the injunction to be issued, 79 F. 2d 666. In 1936, Cold Metal, in line with the foregoing results, filed a supplemental complaint asking that the 1927 contract be “cancelled, revoked and annulled” and that United be enjoined from further operations under the patent. However, in 1938, the District Court, after trial, held the contract valid and enforceable, and directed an accounting before a master. 83 F. Supp. 914. Cold Metal appealed but, in 1939, the Court of Appeals reversed its 1935 decision and largely sustained United’s position. It ordered that the injunction against United’s infringement suits be dissolved and held that the 1927 contract created a valid and enforceable exclusive license in favor of United. It also stated that the master could determine, from an “understanding” between the parties as shown by the record, the amount due from United under the 1927 contract. 107 F. 2d 27. In 1941, United asked leave to file an amended answer and counterclaim, complaining that Cold Metal’s recent acts were inconsistent with the 1939 judgment of the Court of Appeals. In 1942, the District Court denied that motion on the ground that it could carry out only the existing mandate of the Court of Appeals. 43 F. Supp. 375. It suggested, however, that the injunction sought by United in its counterclaim should be the subject matter of another action, and that United could assert, before the master, Cold Metal’s breaches of the 1927 contract. In 1943, the District Court modified its 1938 decree to make it conform to the Court of Appeals’ order of 1939. It also appointed a master to determine not only the amount due Cold Metal from United for its past operations, but the payments to be made on licensed mills in the future. In 1949, United refiled its claims as an “Ancillary Cross Complaint” in Civil Action No. 7744. United sought, inter alia, (1) to enjoin the prosecution of infringement suits by Cold Metal against parties using mills under licenses granted by United, (2) to require Cold Metal to account for any funds it had collected for the use of such mills within the field of United’s exclusive license, and (3) to set off those funds from any payment or royalty that might be due from United to Cold Metal under the 1927 contract. In 1950, the District Court dismissed the cross complaint on the ground that it was not ancillary to Equity No. 2991. 92 F. Supp. 596. However, in 1951, the Court of Appeals reversed the District Court. It held that United’s cross complaint was, in reality, a counterclaim, ancillary to Equity No. 2991, and, therefore, within the jurisdiction of the District Court. 190 F. 2d 217. The Court of Appeals reviewed the previous course of the proceedings and pointed out that the claims now made by United in this counterclaim are entirely dependent upon the 1939 decision of that court, 107 F. 2d 27, which upheld the validity of United’s exclusive license. Into this situation, in 1954, came the master’s report on the accounting in Equity No. 2991. It listed the licensed mills, fixed the compensation payable under the 1927 contract, and found that United’s license had existed from 1930 to 1947 and that United’s customers were duly licensed to use the patented mills. It also held that certain United mills were exempt from royalty, that Cold Metal had failed to respect the license or to perform all of its obligations under the 1927 contract, but that United owed Cold Metal a substantial sum under it. In 1955, the District Court approved the master’s report in all respects and entered judgment against United for $387,650, with interest at from the date of filing of the report. Both parties appealed. Cold Metal at once moved to dismiss United’s appeal on the ground that the District Court had not made the certification required by Rule 54 (b). With permission of the Court of Appeals, the District Court then amended its judgment to add such certification. Again both parties appealed. Again Cold Metal moved to dismiss United's appeal from the amended judgment because the Court of Appeals lacked jurisdiction to entertain it. This time the motion was denied with a per curiam opinion in which the Court of Appeals said “We think the determination made under the circumstances of this case is the very kind of thing Rule 54 (b) was written to provide for. We see no violation of discretion on the part of the district judge in entering it.” 221 F. 2d 115. Accordingly, on October 3, 1955, in the Court of Appeals, the parties argued their respective appeals on their merits in Equity No. 2991. However, before any decision was rendered on the merits, we granted certiorari upon Cold Metal’s petition questioning the jurisdiction of the Court of Appeals to entertain the appeal. 350 U. S. 819. We agree with the Court of Appeals that this is the very kind of case for which amended Rule 54 (b) was designed. The appealability of the adjudicated claim is upheld so that the merits of the existing judgment may be determined at this stage of the proceedings. Prior to the promulgation of the Federal Rules of Civil Procedure in 1939, it may well have been true that the Court of Appeals would not, at this stage, have had jurisdiction over United’s appeal. Under the single judicial unit theory of finality which was then recognized, the Court of Appeals would have been without jurisdiction until United’s counterclaim also had been decided by the District Court. That would have been so even if the counterclaim did not arise out of the same transaction and occurrence as Cold Metal’s claim. However, as stated in Sears, Roebuck & Co. v. Mackey, ante, Rule 54 (b), in its original form, modified the judicial unit theory in respect to multiple claims actions. Accordingly, under that rule, it is likely that if United’s counterclaim qualified as “permissive,” rather than as “compulsory,” the Court of Appeals would have had jurisdiction to entertain the appeal now before us. This conclusion follows from the fact that the test of appealability under the original rule was whether the adjudicated claims were separate from, and independent of, the unadjudicated claims. See Reeves v. Beardall, 316 U. S. 283. However, as set forth in Sears, Roebuck & Co. v. Mackey, ante, that test led to uncertainty, of which the present case might have been an example. The amended rule overcomes that difficulty and, under its terms, we need not decide whether United’s counterclaim is compulsory or permissive. The amended rule, in contrast to the rule in its original form, treats counterclaims, whether compulsory or permissive, like other multiple claims. It provides that “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the [district] court may direct the entry of a final judgment upon one or more but less than all of the claims . . . .” (Emphasis supplied.) Counterclaims and cross-claims are thus equated with the others. See Bendix Aviation Corp. v. Glass, 195 F. 2d 267 (C. A. 3d Cir.). Therefore, under the amended rule, the relationship of the adjudicated claims to the unadjudicated claims is one of the factors which the District Court can consider in the exercise of its discretion. If the District Court certifies a final order on a claim which arises out of the same transaction and occurrence as pending claims, and the Court of Appeals is satisfied that there has been no abuse of discretion, the order is appealable. The reasoning and the result in Sears, Roebuck & Co. v. Mackey, ante, is dispositive of this case. The order appealed from finally adjudicates Cold Metal’s claim for relief, and the Court of Appeals has held that the trial court did not abuse its discretion in certifying the absence of just reasons for delay. That this order is appealable at a time when it would not have been appealable prior to the Federal Rules of Civil Procedure, or under Rule 54 (b) in its original form, does not mean that Rule 54 (b), as amended, is invalid. It applies only to a final decision of one or more claims for relief. The amended rule meets the needs and problems of modern judicial administration by adjusting the unit for appeal to fit multiple claims actions, while retaining a right of judicial review over the discretion exercised by the District Court in determining when there is no just reason for delay. This does not impair the statutory concept of finality embraced in § 1291, and, as held in Sears, Roebuck & Co. v. Mackey, ante, is within the rulemaking power of this Court. Affirmed. [For opinion of Me. Justice Frankfurter, joined by Mr. Justice Harlan, dissenting in this case, but concurring in Sears, Roebuck & Co. v. Mackey, see ante, p. 439.] For text, see Sears, Roebuck & Co. v. Mackey, ante, at 434-435. For text, see Sears, Roebuck & Co. v. Mackey, ante, at 431. The entire agreement appears in 107 F. 2d 27, 28-29, n. 1. See 3 F. Supp. 120, 68 F. 2d 564, cert. denied, 291 U. S. 675, all relating to Equity No. 2506. The amendment included an express determination that there was “no just reason for delay in entering an order and final judgment disposing of the issues raised by the Report of the Special Master . . . This was done after a hearing during which the District Court said “I think, so far as this Court is concerned, without a decision by the Court of Appeals on that report [of the special master], that we would just be wandering in an area where we couldn’t see our way out if we tried any other issue until this case is decided.” After the master’s report was filed, and before objections to it had been filed, counsel for each side jointly informed the court that they desired to dispose of the master’s report before trying the issues in the pending (counterclaim) Civil Action No. 7744, and that the final action on the master’s report might even make it undesirable to try that action. The court, thereupon, continued, sine die, the pretrial conference it had scheduled in Civil Action No. 7744, and removed the case from the trial calendar, without prejudice to either party and subject to reinstatement. That is the present status of the “counterclaim.” See Ayres v. Carver, 17 How. 591; Bowker v. United States, 186 U. S. 135; General Electric Co. v. Marvel Rare Metals Co., 287 U. S. 430; Toomey v. Toomey, 80 U. S. App. D. C. 77, 149 F. 2d 19. Fed. Rules Civ. Proe., 13 (b), defines a "permissive” counterclaim as follows: “A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” Fed. Rules Civ. Proc., 13 (a), defines a compulsory counterclaim as follows: “A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action.” See Audi Vision, Inc. v. RCA Mfg. Co., 136 F. 2d 621 (C. A. 2d Cir.); Toomey v. Toomey, supra. See Sears, Roebuck & Co. v. Mackey, ante, at 433-434. 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_fedvst	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?" 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". Leonard VAN DOMELEN and Amy Van Domelen, Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, a corporation, Appellee. No. 21447. United States Court of Appeals Ninth Circuit. July 27, 1967. Gerald H. Robinson, Portland, Or., for appellants; Green, Richardson, Griswold & Murphy, Portland, Or., of counsel. W. C. Schwenn, Hillsboro, Or., Malcolm J. Montague, Williams, Montague, Stark & Thorpe, Portland, Or., for appellee. Before HAMLEY and MERRILL, Circuit Judges, and MATHES, District Judge. MATHES, District Judge: Leonard and Amy Van Domelen appeal from a judgment of the District Court entered upon a jury verdict finding them liable upon their joint written guaranty in favor of appellee. The guaranty in question, dated January 7, 1964, was executed in Oregon in favor of the appellee, Westinghouse Electric Corporation, and by its terms guarantees payment of the account of Sharon Manufacturing Company with Westinghouse. Federal jurisdiction is grounded upon diversity of citizenship, so the substantive law of Oregon governs. [Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).] Appellants’ first contention is that this guaranty failed to satisfy the expression-of-consideration requirement of the Oregon Statute of Frauds, which provides in part that: “In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing * * * (2) An agreement to answer for the debt, default or miscarriage of another.” [Ore.Rev.Stat. § 41.580.] Although the challenged instrument recites that it was executed “In consideration of your [Westinghouse] extending credit to Sharon Furniture Manufacturing Co., Inc. * * * and for value received”, appellants argue that this is an insufficient expression of the consideration for the guaranty here, since the consideration claimed by Westinghouse to have been given was not extension of credit, but a forbearance of suit against Sharon. It is to be noted however, that the provisions of the guaranty conclude with the following recital: “Witness our hands and seals the day and year above written.” The abbreviation “L.S.” appears in print following each of the Van Domelen signatures, and signifies presence of a seal in accordance with § 42.-120 of the Oregon Revised Statutes, which was in effect at all times relevant here. In Johnston v. Wadsworth, 24 Or. 494, 34 P. 13 (1883), the Oregon Supreme Court considered the requirement of “expressing the consideration”, as found in Oregon’s Statute of Frauds [Or.Rev. Stat. § 41.580], and observed that “the agreement being under seal, the seal is itself sufficient to satisfy the statute.” [24 Or. at 502, 34 P. at 15; cf. Title & Trust Co. v. Nelson, 157 Or. 585, 71 P.2d 1081, 114 A.L.R. 1196 (1937).] Although, as appellants point out, § 41.350(3) of the Oregon Revised Statutes declares that a recital of consideration is excluded from the conclusive presumption of “[t]he truth of the facts recited * * * in a written instrument”, this provision is relevant to a determination of whether or not there was in fact a failure of the expressed consideration, and not to a determination of whether or not the Oregon Statute of Frauds has been satisfied. The requirements of Oregon's Statute of Frauds being met by execution of the guaranty under seal, parol evidence was properly admitted to explain that the ambiguous phrase “extending credit * * * and for value received”, as employed in the guaranty, referred to forbearance of suit on the part of appellee. [See Or.Rev.Stat. §§ 41.740, 42.-220.] Appellants next urge that there was insufficient evidence to support the jury’s determination that Westinghouse agreed to forbear suit against Sharon, but so to hold would require us to declare that the jury could not reasonably have believed the testimony of appellee’s credit manager. We are unable to say that the jury’s finding from the evidence in the case was outside the bounds of reasonableness. [See Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (I960).] Finally, appellants contend that in all events there was no credible evidence to warrant a jury finding that Westinghouse relied upon the guaranty in forbearing to sue Sharon; and in this connection they also assert that the trial court erroneously limited appellants’ cross-examination of appellee’s principal witness on this issue. The trial judge instructed the jury that, in order to find in favor of appellee, they must find not only that Westinghouse promised Sharon to forbear suit in return for appellant’s guaranty, but also that Westinghouse relied at least in part upon appellants’ guaranty in actually forbearing suit against Sharon for the agreed period of time. Inasmuch as we find no authority suggesting that the courts of Oregon would follow a different rule from that adhered to in other jurisdictions, we hold that the jury’s verdict in favor of appellee would have been fully supported either by a finding of a promise to forbear, or by a finding of actual forbearance in reliance upon the guaranty. [See Restatement of Contracts § 75 (1932); 1 Corbin on Contracts § 139 (1963); Annot., 78 A. L.R.2d 1414.] And since there was ample evidence to support the finding of a promise to forbear on the part of Westinghouse, and it is undisputed that Westinghouse actually did forbear during the agreed-upon period of time, the trial court’s error, if any, in limiting appellants’ cross-examination and in tendering the issue of reliance upon the guaranty to the jury, was harmless. [See Fed.R. Civ.P. 61.] The verdict in favor of appellee on the January 7, 1964 guaranty being sufficient to sustain the judgment appealed from, we need not reach the questions raised as to the correctness of the trial court’s rulings involving an earlier guaranty executed in 1963 by appellant Leonard Van Domelen alone in favor of appellee. The judgment appealed from is affirmed. Judge Mathes prepared and signed this opinion, hut died before it could be filed. Question: Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_petitioner	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. ARIZONA v. YOUNGBLOOD No. 86-1904. Argued October 11, 1988 Decided November 29, 1988 John R. Gustafson argued the cause for petitioner. With him on the brief were Stephen D. Neely, James M. Howard, and Deborah Strange Ward. Daniel F. Davis argued the cause and filed a brief for respondent. Chief Justice Rehnquist delivered the opinion of the Court. Respondent Larry Youngblood was convicted by a Pima County, Arizona, jury of child molestation, sexual assault, and kidnaping. The Arizona Court of Appeals reversed his conviction on the ground that the State had failed to preserve semen samples from the victim’s body and clothing. 153 Ariz. 50, 734 P. 2d 592 (1986). We granted certiorari to consider the extent to which the Due Process Clause of the Fourteenth Amendment requires the State to preserve evidentiary material that might be useful to a criminal defendant. On October 29, 1983, David L., a 10-year-old boy, attended a church service with his mother. After he left the service at about 9:30 p.m., the boy went to a carnival behind the church, where he was abducted by a middle-aged man of medium height and weight. The assailant drove the boy to a secluded area near a ravine and molested him. He then took the boy to an unidentified, sparsely furnished house where he sodomized the boy four times.. Afterwards, the assailant tied the boy up while he went outside to start his car. Once the assailant started the car, albeit with some difficulty, he returned to the house and again sodomized the boy. The assailant then sent the boy to the bathroom to wash up before he returned him to the carnival. He threatened to kill the boy if he told anyone about the attack. The entire ordeal lasted about YA hours. After the boy made his way home, his mother took him to Kino Hospital. At the hospital, a physician treated the boy for rectal injuries. The physician also used a “sexual assault kit” to collect evidence of the attack. The Tucson Police Department provided such kits to all hospitals in Pima County for use in sexual assault cases. Under standard procedure, the victim of a sexual assault was taken to a hospital, where a physician used the kit to collect evidence. The kit included paper to collect saliva samples, a tube for obtaining a blood sample, microscopic slides for making smears, a set of Q-Tip-like swabs, and a medical examination report. Here, the physician used the swab to collect samples from the boy’s rectum and mouth. He then made a microscopic slide of the samples. The doctor also obtained samples of the boy’s saliva, blood, and hair. The physician did not examine the samples at any time. The police placed the kit in a secure refrigerator at the police station. At the hospital, the police also collected the boy’s underwear and T-shirt. This clothing was not refrigerated or frozen. Nine days after the attack, on November 7, 1983, the police asked the boy to pick out his assailant from a photographic lineup. The boy identified respondent as the assailant. Respondent was not located by the police until four weeks later; he was arrested on December 9, 1983. On November 8, 1983, Edward Heller, a police criminologist, examined the sexual assault kit. He testified that he followed standard department procedure, which was to examine the slides and determine whether sexual contact had occurred. After he determined that such contact had occurred, the criminologist did not perform any other tests, although he placed the assault kit back in the refrigerator. He testified that tests to identify blood group substances were not routinely conducted during the initial examination of an assault kit and in only about half of all cases in any event. He did not test the clothing at this time. Respondent was indicted on charges of child molestation, sexual assault, and kidnaping. The State moved to compel respondent to provide blood and saliva samples for comparison with the material gathered through the use of the sexual assault kit, but the trial court denied the motion on the ground that the State had not obtained a sufficiently large semen sample to make a valid comparison. The prosecutor then asked the State’s criminologist to perform an ABO blood group test on the rectal swab sample in an attempt to ascertain the blood type of the boy’s assailant. This test failed to detect any blood group substances in the sample. In January 1985, the police criminologist examined the boy’s clothing for the first time. He found one semen stain on the boy’s underwear and another on the rear of his T-shirt. The criminologist tried to obtain blood group substances from both stains using the ABO technique, but was unsuccessful. He also performed a P-30 protein molecule test on the stains, which indicated that only a small quantity of semen was present on the clothing; it was inconclusive as to the assailant’s identity. The Tucson Police Department had just begun using this test, which was then used in slightly more than half of the crime laboratories in the country. Respondent’s principal defense at trial was that the boy had erred in identifying him as the perpetrator of the crime. In this connection, both a criminologist for the State and an expert witness for respondent testified as to what might have been shown by tests performed on the samples shortly after they were gathered, or by later tests performed on the samples from the boy’s clothing had the clothing been properly refrigerated. The court instructed the jury that if they found the State had destroyed or lost evidence, they might “infer that the true fact is against the State’s interest.” 10 Tr. 90. The jury found respondent guilty as charged, but the Arizona Court of Appeals reversed the judgment of conviction. It stated that “‘when identity is an issue at trial and the police permit the destruction of evidence that could eliminate the defendant as the perpetrator, such loss is material to the defense and is a denial of due process.’” 153 Ariz., at 54, 734 P. 2d, at 596, quoting State v. Escalante, 153 Ariz. 55, 61, 734 P. 2d 597, 603 (App. 1986). The Court of Appeals concluded on the basis of the expert testimony at trial that timely performance of tests with properly preserved semen samples could have produced results that might have completely exonerated respondent. The Court of Appeals reached this conclusion even though it did “not imply any bad faith on the part of the State.” 153 Ariz., at 54, 734 P. 2d, at 596. The Supreme Court of Arizona denied the State’s petition for review, and we granted certiorari. 485 U. S. 903 (1988). We now reverse. Decision of this case requires us to again consider “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982). In Brady v. Maryland, 373 U. S. 83 (1963), we held that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id., at 87. In United States v. Agurs, 427 U. S. 97 (1976), we held that the prosecution had a duty to disclose some evidence of this description even though no requests were made for it, but at the same time we rejected the notion that a “prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel.” Id., at 111; see also Moore v. Illinois, 408 U. S. 786, 795 (1972) (“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case”). There is no question but that the State complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and the clothing, and the boy’s examination at the hospital. The State provided respondent’s expert with the laboratory reports and notes prepared by the police criminologist, and respondent’s expert had access to the swab and to the clothing. If respondent is to prevail on federal constitutional grounds, then, it must be because of some constitutional duty over and above that imposed by cases such as Brady and Agurs. Our most recent decision in this area of the law, California v. Trombetta, 467 U. S. 479 (1984), arose out of a drunken driving prosecution in which the State had introduced test results indicating the concentration of alcohol in the blood of two motorists. The defendants sought to suppress the test results on the ground that the State had failed to preserve the breath samples used in the test. We rejected this argument for several reasons: first, “the officers here were acting in ‘good faith and in accord with their normal practice,’” id., at 488, quoting Killian v. United States, 368 U. S. 231, 242 (1961); second, in the light of the procedures actually used the chances that preserved samples would have exculpated the defendants were slim, 467 U. S., at 489; and, third, even if the samples might have shown inaccuracy in the tests, the defendants had “alternative means of demonstrating their innocence.” Id., at 490. In the present case, the likelihood that the preserved materials would have enabled the defendant to exonerate himself appears to be greater than it was in Trombetta, but here, unlike in Trombetta, the State did not attempt to make any use of the materials in its own case in chief. Our decisions in related areas have stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government. In United States v. Marion, 404 U. S. 307 (1971), we said that “[n]o actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them.” Id., at 325; see also United States v. Lovasco, 431 U. S. 783, 790 (1977). Similarly, in United States v. Valenzuela-Bemal, supra, we considered whether the Government’s deportation of two witnesses who were illegal aliens violated due process. We held that the prompt deportation of the witnesses was justified “upon the Executive’s good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution.” Id., at 872. The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. Part of the reason for the difference in treatment is found in the observation made by the Court in Trombetta, supra, at 486, that “[w]henever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” Part of it stems from our unwillingness to read the “fundamental fairness” requirement of the Due Process Clause, see Lisenba v. California, 314 U. S. 219, 236 (1941), as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i. e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on-the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. In this case, the police collected the rectal swab and clothing on the night of the crime; respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence — such as it was — was made available to respondent’s expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion— and we agree — that there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause. The Arizona Court of Appeals also referred somewhat obliquely to the State’s “inability to quantitatively test” certain semen samples with the newer P-30 test. 153 Ariz., at 54, 734 P. 2d, at 596. If the court meant by this statement that the Due Process Clause is violated when the police fail to use a particular investigatory tool, we strongly disagree. The situation here is no different than a prosecution for drunken driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests. The judgment of the Arizona Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed. In this case, the Arizona Court of Appeals relied on its earlier decision in State v. Escalante, 153 Ariz. 55, 734 P. 2d 597 (1986), holding that ‘“when identity is an issue at trial and the police permit destruction of evidence that could eliminate a defendant as the perpetrator, such loss is material to the defense and is a denial of due process.’ ” 153 Ariz. 50, 54, 734 P. 2d 592, 596 (1986), quoting Escalante, supra, at 61, 734 P. 2d, at 603 (emphasis added). The reasoning in Escalante and the instant case mark a sharp departure from Trombetta in two respects. First, Trombetta speaks of evidence whose exculpatory value is “apparent.” 467 U. S., at 489. The possibility that the semen samples could have exculpated respondent if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombetta. Second, we made clear in Trombetta that the exculpatory value of the evidence must be apparent “before the evidence was destroyed.” Ibid, (emphasis added). Here, respondent has not shown that the police knew the semen samples would have exculpated him when they failed to perform certain tests or to refrigerate the boy’s clothing; this evidence was simply an avenue of investigation that might have led in any number of directions. The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Cf. Napue v. Illinois, 360 U. S. 264, 269 (1959). 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_state	22	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". UNITED STATES of America, Appellee, v. Robert BISHOP, Defendant-Appellant. No. 72-1148. United States Court of Appeals, First Circuit. Argued Sept. 6, 1972. Decided Nov. 22, 1972. Charles P. Dattola, Boston, Mass., with whom Henry F. Owens, III, and Owens & Dilday, Boston, Mass., were on brief, for appellant. Frederic R. Kellogg, Asst. U. S. Atty., with whom Joseph L. Tauro, U. S. Atty., was on brief, for appellee. Before COFFIN, Chief Judge, Mc-ENTEE, Circuit Judge, and HAMLEY, Senior Circuit Judge. Of the Ninth Circuit, sitting by designation. COFFIN, Chief Judge. Appellant, Robert Bishop, was convicted on two counts of sale of heroin, under 21 U.S.C. § 841(a)(1), and sentenced to five years imprisonment and a special parole term of three years. On this appeal, he raises three claims: (1) that the provision of the Narcotic Addict Rehabilitation Act of 1966, barring all offenders with two prior felony convictions from being considered for treatment commitment in lieu of imprisonment, is a denial of the equal protection element of the Fifth Amendment; (2) that his conviction cannot stand because his heroin addiction so substantially impaired his behavioral controls that he lacked the criminal capacity required by the common law concept of mens rea-, and (3) that the cruel and unusual punishment clause of the Eighth Amendment similarly precludes conviction of an addict whose control is substantially impaired. In 1966, Congress enacted the Narcotic Addict Rehabilitation Act, P.L. 89-793, 80 Stat. 1438 [hereinafter NARA], a major revision of the federal court procedures for dealing with drug-addicted individuals. Title I of the Act, now 28 U.S.C. §§' 2901-06, provides for civil treatment commitment before trial of persons charged with federal crimes, and dismissal of the charges upon successful completion of the treatment. Title II, now 18 U.S.C. §§ 4251-55, provides for similar commitment in lieu of imprisonment for those convicted of a federal crime. Title III, now 42 U.S.C. §§ 3411-26, provides for civil commitment of persons not involved in the criminal process. In each case, after following the prescribed procedures, including commitment for an examination, the court must determine whether the individual is an addict, as defined in the statute, 28 U.S.C. § 2901(a), 18 U.S.C. § 4251(a), 42 U.S.C. § 3411(a), and whether he “is likely to be rehabilitated through treatment”, 28 U.S.C. § 2902(b), 18 U.S.C. § 4253(a), 42 U.S.C. § 3415. If it so finds, the court must commit the individual. The first two titles contain, however, five parallel provisions, 28 U.S.C. §§ 2901(g) (l)-(5), 18 U.S.C. §§ 4251(f) (l)-(5), which exclude from eligibility for treatment consideration the following classes of addict-offenders: (1) persons currently accused or convicted under federal law of a crime of violence, as defined in earlier subsections, 28 U.S.C. § 2901(c), 18 U.S.C. § 4251(b), (2) persons currently accused or convicted under federal law of selling or importing or conspiring to sell or import a narcotic drug, except that Title II carves out of that class and makes eligible for commitment those that the court finds sold “for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.” 18 U.S.C. § 4251(f)(2), (3) persons against whom a felony charge (other than the one under which they are being processed) is outstanding or who have not completed a prior sentence, or period of probation or parole, (4) persons “convicted of a felony on two or more prior occasions”, 28 U. S.C. § 2901(g)(4), 18 U.S.C. § 4251(f)(4) (the provision under challenge here), and (5) persons civilly committed three times previously under any state or any specified federal program. The term “felony” used in the third and fourth exclusions is defined as any offense classified as a felony by 18 U.S.C. § 1 or by the law of the jurisdiction in which the crime was committed at the time of its commission, 28 U.S.C. § 2901(e), 18 U.S.C. § 4251(d). Title III, which is designed for those not involved in the criminal process, contains only the third exclusion, worded to cover any criminal charge, 42 U.S.C. § 3421. Congress’ general purpose in passing the statute was, as the House Report put it, “to provide for the treatment and rehabilitation of narcotic addicts when they are charged with or convicted of offenses against the United States.” To effectuate this broad goal, Congress expanded the disposition alternatives available to federal courts in criminal cases and gave the courts the discretion in employing the new procedures necessary for application of the law to those Congress intended to benefit. As the House Committee noted: “The practical effect of the implementation of the law provided for in the bill, is that strict punishment can be meted out where required to the hardened criminal, while justice can be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed.” To assist courts in making the distinction between hardened addict-criminals deserving punishment and other addict-criminals deserving consideration for treatment, Congress enacted the five exclusions noted above. The two-prior-felony disqualification was viewed as the mechanism for insuring punishment for those with a “history of serious crimes”. “The definition of ‘eligible individual’ as set forth in the bill insures that the persons considered as candidates for civil commitment will not include criminals charged with violent crimes or be those whose records disclose a history of serious crimes.” Congress intended that, except for those in the excluded categories, all federal offenders should be eligible for treatment commitment and for the court determinations of addiction and likelihood of rehabilitation that were made the sole prerequisites to commitment. In light of the repeated and consistent testimony of all witnesses at the hearings, from the Attorney General on down, that narcotics addiction almost inevitably compels its victims to turn to crime and is a factor in practically all crimes that addicts commit, it was thought inappropriate also to require as a condition of commitment that the court find a connection between the particular crime for which the defendant is being processed and his addiction, although such a requirement was specifically requested by the Judicial Conference. “[T]his close connection between crime and addiction is one of the basic reasons for this legislation. To require a court to establish such an explicit relationship would introduce a technicality which might serve to defeat one of the basic purposes of the bill which is to provide a practical and expeditious procedure to break a pattern of addiction and criminality.” The only other specific guidepost erected by Congress was the maximum ten-year commitment period for post-conviction commitments, designed as a safeguard against judicial errors in determining the treatability of certain offenders. “It also should be recognized that it provides a lengthy period of sentence for those recalcitrant offenders who do not respond to treatment.” Congress could thus be said to have created three broad categories: hardened criminals not worthy of consideration by a court for treatment; hardened addicts who the court finds are not likely to, or actually do not, respond to treatment; and treatable addicts. Appellant, who moved at the opening of his trial to be declared eligible for treatment under 18 U.S.C. § 4251, argues that the flat exclusion of all addicts convicted twice previously of a felony is arbitrary and in no way related to the purpose of distinguishing hardened addict-criminals who are dangerous to society and deserve punishment from addict-criminals in need of treatment. He relies heavily on Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), in which the District of Columbia Circuit, sitting en banc, held the two-prior felony disqualification here at issue unconstitutional because it found that the anomaly of permitting a onetime trafficking addict to get treatment while denying the opportunity to a three-time possessor of heroin for his own use was totally at odds with the Congressional purpose of distinguishing the hardened criminal from the addict deserving of treatment. The court also noted that it would rule the same way had Watson been convicted for the third time of selling heroin. Id. at 457. The government claims that Watson is inapplicable here. It argues that the court in Watson was concerned about the situation where addicts made eligible for treatment by the proviso to § 4251(f)(2) for sales made primarily to obtain drugs for one’s own addiction were disqualified under § 4251(f)(4) solely because they repeated that crime three times. That problem is said to be absent here because Bishop’s prior felony convictions, in 1963 and 1964, were for non-narcotic offenses, specifically conspiracy to transport forged checks and conspiracy to transport implements used in forging and counterfeiting in interstate commerce, and thus as applied here the two-felony provision does not exclude a class of offenders specifically made eligible by Congress. Moreover, although admitting that Congress may have drawn the line at a somewhat arbitrary point, the government argues that the statutory distinction is reasonably related to the purpose of keeping the more criminally inclined out of NARA centers. We find, however, when reading § 4251(f)(4) in conjunction with other parts of the Act, a whole series of anomalies, in the root sense of inequalities, indicating that the disqualification lacks “relevance to the purpose for which the classification is made”. Rinaldi v. Yeager, 384 U.S. 305, 309, 86 S. Ct. 1497, 1500, 16 L.Ed.2d 577 (1966); Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); see also James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31 L.Ed.2d 394 (1972). —In conjunction with § 4251(f)(2). First, we find, as did the Watson court, anomalies when reading § 4251(f)(4) in conjunction with § 4251(f)(2), the exclusion of heroin sellers. Under (f)(2), a convicted seller like Bishop is eligible for treatment if he can show that the sale was made primarily to support his own habit, even if he had once previously, before becoming addicted, sold heroin for profit, despite the fact that the non-addicted pusher was the very archetype of the hardened criminal that so worried Congress. Yet under (f)(4), the same seller cannot get treatment if he had twice previously sold heroin, even though all three sales were for the primary purpose of satisfying his own habit. Similarly, one who sells heroin for his own addiction is eligible even though he had once previously, when not yet addicted, conspired to transport forged checks in interstate commerce as part of an illegal business, while one who had twice previously so conspired solely to get the funds necessary to support his addiction is not eligible for treatment. These anomalies cannot be explained as a by-product of the strong prophylactic rule employed by Congress to insure exclusion of all hardened criminals, in this context those whose past crimes were not addiction-related. For the same rule which excludes all hardened criminals with two felonies includes all hardened criminals with one felony. It is also not a sufficient justification to note that this grossly over- and under-inclusive classification spares courts the time needed to determine addiction-relatedness and the difficulty of determining such questions on stale evidence. Courts are called upon repeatedly, in response to both constitutional and nonconstitutional claims, to spend time examining the validity of prior, often very old, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), convictions, based on stale and often uncorroborated evidence. Nor can Congress’ refusal in this statute to require an inquiry into past crimes be justified on the grounds that the interest here affected is relatively less important, for even in dealing with this interest, of eligibility for treatment commitment, it has acted inconsistently. Given the unanimous testimony that almost all addict-committed crimes spring from the addiction and the uncontradicted testimony that addicts usually are arrested and convicted of several offenses, both felonies and misdemeanors, in the first few years of their addiction, it is contradictory to save judicial resources as to one prior felony so as to err on the side of including all those deserving treatment and use the same justification as to two felonies so as to err on the side of excluding undesirables. —In conjunction with § 4251(f)(1). A similar inconsistency arises in connection with § 4251(f)(1), the disqualification for those convicted of a crime of violence. If one has just been convicted of one of the carefully enumerated crimes defined in § 4251(b), then one is disqualified. If one had been previously so convicted, but this time was convicted of a non-violent crime, one would be eligible. This oddity could be justified by the theory that as to one freshly convicted for violence, there is certainty of his dangerousness, but if the violent crime is old and the present one non-violent, the proposition is less evident. Pursuing that view, it might be argued that two prior violent crimes would be sufficient evidence of a pattern of dangerousness to support a flat disqualification. But the two-prior-felony exclusion is not limited to crimes of violence. Again it is wholly at odds with the Congressional purpose to include a one-time violent offender but exclude a two-time non-violent offender. —In conjunction with § 4251(d). A similarly egregious anomaly appears when § 4251(f)(4) is read in combination with the “felony” definition. Subsection 4251(d) defines a felony as any federal offense defined as one by 18 U.S.C. § 1, “and further includes any offense in violation of a law of any State, any possession or territory of the United States, the District of Columbia, the Canal Zone, or the Commonwealth of Puerto Rico, which at the time of the offense was classified as a felony by the law of the place where that offense was committed.” Thus two persons who both had twice previously committed the identical' crime of possession of marijuana might be treated differently under § 4251(f)(4) simply because one committed his crimes in Florida where possession over five grams is a felony and the other committed his in New York where it is only a misdemeanor, compare Fla.Stat. §§ 404.-02, 404.15 (1971), F.S.A., with New York Penal Law, McKinney’s Consol. Laws, c. 40, § 220.05 (1972 Supp.), or because one committed both of his crimes before May 1, 1971, and the other committed them after that date, when the federal offense of marijuana possession was reduced to a misdemeanor for first offenders, compare 21 U.S.C. § 174, 26 U.S.C. §§ 4744(a), 7237, repealed P. L. 91-513, 84 Stat. 1236, § 1101, with 21 U.S.C. § 844(a). Similarly, forgery of certain items constitutes a felony within one state while forgery of other materials is only a misdemeanor in the same state. Compare Fla.Stat. §§ 831.01 and 831.03 (1971), F.S.A. Surely one cannot claim that committing a crime in Florida or in one year rather than another, or forging one document rather than another makes one a more hardened criminal. The example of changing statutory definitions also highlights the exclusion’s disregard of all time limits, which though not an anomaly in the sense here used, is further evidence of the classification’s irrationality. All prior felonies are counted — whether a joy-ride by a peer-imitating teenager or a rape committed by a 35-year old sex deviate during the pendency of the proceedings in which sentence is about to be imposed. Any intervening period between felonies of good behavior or attempts at rehabilitation are ignored; a person is thought to harden as a criminal merely because he accumulates a fixed number of judgments, regardless of changes in his personality or personal circumstances over time. —In conjunction with Title III. Although the above anomalies show that Congress was at best using the crudest of tools in chiseling out the image of a hardened criminal, there is one final crowning inconsistency. The provisions of Title III of the Act, codified as 42 U. S.C. §§ 3411-26, permit any narcotic addict or a related individual (as defined in § 341 l(i)) to petition for civil treatment commitment. In considering whether to request a court to commit the individual, the United States Attorney receiving the petition must only determine “that there is reasonable cause to believe that the person named in such petition is a narcotic addict, and that appropriate State or other facilities are not available to such person.” 42 U.S.C. § 3412(b). After the prescribed procedures, the court must only find that the petitioner is “a narcotic addict who is likely to be rehabilitated through treatment” before committing him. Id. § 3415. Although the primary purpose of this title was to provide treatment to addicts before they entered a life of crime, the only persons explicitly excluded are those against whom a criminal charge is pending or those who have not completed a sentence from a prior conviction. Id. § 3421. Thus, an individual like Bishop who is about to be sentenced for his third felony is not eligible for commitment but one who has completed his sentence for his third felony conviction may be committed. This distinction cannot be explained on the grounds that the latter individual, subject to no threat of imprisonment, is acting wholly voluntarily in requesting commitment, a sign of earnest desire to be rehabilitated. The two-prior-felony disqualification is aimed primarily at avoiding “light” sentencing for or the introduction into NARA centers of dangerous criminals, not to weed out those unlikely to be rehabilitated. In any case, a petition for commitment may be brought not only by the willing patient but also by any specified relative and even by “any person with whom the alleged narcotic addict may reside or at whose house he may be.” 42 U.S.C. § 3411 (i). The provisions for appointment of counsel and presence at examination of a retained physician, and for the right to present evidence and cross-examine witnesses, id. §§ 3413, 3414(b), bespeak a Congressional assumption that the procedure will often be adversary and the resulting commitment involuntary. Thus, lacking relevance to the purpose for which enacted, the two-pri- or-felony disqualification from consideration for treatment commitment in 18 U.S.C. § 4251(f)(4) must fall. We turn now to appellant’s contention that because of his addiction he lacked the necessary mental state or mens rea to be held criminally responsible under the common law. The government claims that the issue was not properly raised at trial because appellant did not request the court, sitting without a jury, to make special findings, pursuant to Fed.R.Crim.P. 23(c), and that such a request is the appropriate way of preserving for appeal the issue of the proper legal standard to be applied. Wright, Federal Practice and Procedure: Criminal § 374. We agree that the issue of the common law definition of criminal responsibility was not properly preserved at trial and find that the record here is not so complete nor the defendant’s position at trial so clear that we should undertake determination of this complex issue notwithstanding the failure to comply with Rule 23. Id. § 374. Despite the absence of a Rule 23 request, the district court, after hearing argument on the legal claims after trial, volunteered, out of a commendable abundance of caution, a specific finding: “that the Government has proved beyond a reasonable doubt that he had the ability to make a free choice, and he knew and decided to make the sales after a conversation with the agent.” This could admittedly be read as a rejection of either a common law or Eighth Amendment mens rea defense. However, examination of the oral argument to which this finding was a response, as' well as the memorandum of law filed simultaneously (and a supplemental brief filed subsequently) indicates that the constitutional claim was the only one clearly raised and decided. In introducing this argument, counsel said: “The contention of the defendant is that sentencing him to imprisonment under the circumstances of this particular case would be cruel and unusual punishment.” In then attempting to “trace relevant law on this particular issue”, counsel discussed, as do the pages of the memorandum he specifically referred the court to, the _ Supreme Court cases of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) and Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), and the District of Columbia Circuit cases of Easter v. District of Columbia, 124 U.S. App.D.C. 33, 361 F.2d 50 (1966) (en banc) and Watson, supra, all of which deal with the Eighth Amendment defense. Although at one point he did say that “[o]ur contention is that he lacked the requisite mens rea to be criminally responsibile for the charge”, we believe his own summary is a fair representation of the thrust of his argument: “that to sentence the defendant to imprisonment as a result of this act, knowing the condition he has been in we believe would be cruel and unusual punishment in violation of the Eighth Amendment to the Constitution.” Even assuming, however, in light of defendant's testimony, the nature of counsel’s cross-examination of government witnesses, some statements in his closing argument and memoranda, and the wording of his motion to dismiss, that defendant did raise a defense of lack of common law mens rea (although not preserving the issue of that defense’s definition), his claim must fail on its own terms. The defense, as formulated by defense counsel at the argument at the close of trial, was: “at the time of his alleged offense he was so completely addicted to the use of heroin that he had lost control of his senses and was unable to abstain from committing the crime for which he has been charged.” The government agent testified that on both occasions he had a conversation with the defendant regarding the price and the possibility of discounts for bulk purchases and that on the first occasion there was some discussion of the method of accounting for incomplete deliveries. Moreover, the first sale was of 120 bags and the second of 250, although the defendant testified that his own daily requirement was 37 bags. He also stated that he knew he was selling good heroin to the agent and indirectly admitted that he knew it was illegal to do so. We believe that the court below could properly conclude that an individual who sold in one ease more than three times and in another almost seven times his daily habit following a discussion of price and adjustments for inadequate deliveries in order to obtain enough money to purchase the subsequent week’s supply although perhaps completely addicted to heroin, had not lost control of his senses nor his ability to abstain from making those sales. We turn finally to appellant’s related claim that his conviction and sentence of imprisonment were invalid under the Eighth Amendment. In Robinson v. California, supra, the Supreme Court held that a state cannot, consistent with the Eighth Amendment, penalize a person for the disease of narcotics addiction when the individual “has never touched any narcotic drug within the State or been guilty of any irregular behavior there.” 370 U.S. at 667, 82 S.Ct. at 1420-1421. In Powell v. Texas, supra, the Court was asked to hold, as had the District of Columbia Circuit in Easter, supra, and the Fourth Circuit in Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966), that Robinson prevented conviction of a chronic alcoholic for public intoxication. Mr. Justice Marshall, writing for a four-member plurality, read Robinson as prohibiting only the imposition of punishment for a mere “status”, which did not involve any guilty act, traditionally referred to as the actus reus, and not as creating a constitutional definition of mens rea. Mr. Justice White thought Robinson prevented conviction of an alcoholic for becoming drunk and, if the record established his inability to avoid being in public, for being drunk in public. He concurred in the judgment because he thought the record there did not establish Powell’s inability to avoid public streets. Mr. Justice Fortas, writing for four dissenters, thought that Robinson precluded punishment not merely for a “status”, such as being addicted, but also for any “condition” which is a characteristic part of the pattern of a disease and a consequence of a compulsion symptomatic of the disease. He specifically noted, however, that his rationale would not apply to “independent acts or conduct” such as drunken driving, assault, or theft, not a characteristic and involuntary part of the pattern of the disease. 392 U.S. at 559 n. 2, 88 S.Ct. 2145. Thus, the entire Court seemed to agree that whatever the scope of the Eighth Amendment defense of disease or disease compulsion, it did not encompass offenses involving independent, affirmative acts directly • affecting others which are not characteristic, involuntary parts of a disease. We need not here canvass the scope of that defense. For, whatever its outer limits, see Watson, supra, United States v. Ashton, 317 F.Supp. 860 (D.D.C.1970), United States v. Lindsey, 324 F.Supp. 55 (D.D.C. 1971), it seems clear that it does not protect, on the record before us, one like the appellant who, knowing of the illegality of the conduct and following discussions of price and methods of adjusting incomplete deliveries, sells to another in exchange for a large sum of cash, a quantity of the substance to which he is compulsively addicted far in excess of his own immediate needs or daily requirements. Since we have found the disqualification from eligibility for treatment commitment imposed by 18 U.S.C. § 4251(f)(4) unconstitutional, we must vacate appellant’s sentence and remand to the district court for determination, by a different judge, Mawson v. United States, 463 F.2d 29 (1st Cir. 1972), following an evidentiary hearing if the present record is inadequate, whether appellant is eligible under the proviso to § 4251(f)(2) and, if eligible, whether appellant is a narcotic addict likely to be rehabilitated through treatment and thus to be committed in lieu of imprisonment, under 18 U.S.C. § 4253(a). Judgment of conviction affirmed; sentence vacated and case remanded for resentencing. . H.R.Rep.No.1486, 89th Cong., 2d Sess. (1966), 1966 U.S.Code Cong. & Admin. News, pp. 4245, 4248 [hereinafter House Report]. See also S.Rep.No.1667, 89th Cong., 2d Sess. 12 (1966) [hereinafter Senate Report]; Hearings on H.R. 9051, 9159, 9167, and Related Bills Before Subcommittee No. 2 of the House Committee on the Judiciary, 89th Cong., 1st and 2d Sess., at 53-54, 78-79 (Attorney General Katzenbach), 149-50, 228-31 [hereinafter House Hearings]; Hearings on S. 2187, 2188, 2189, 2190, 2191, and 2578 Before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., at 35 (Attorney General Katzenbach), 95, 160 (Acting Surgeon General Gehrig), 164-68 [hereinafter Senate Hearings]; 112 Cong.Rec. 11795, 11804, 11901, 25418, 25430-32, 28548. Except where otherwise noted, all citations to the hearings are to comments by members of Congress. The Act was based, on.the House-passed Administration bill, H.R. 9167. The Senate, although also holding hearings on S. 2152, the Administration bill, Hearings on S. 2113, 2114, and 2152 Before Special Subcommittee of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. (1966), originally passed S. 2191, Senator McClellan’s bill, which differed primarily in its provisions for civil commitment of those not involved in the criminal process. These were adopted by the Conference Committee, Conf.Rep. No. 2316, 89th Cong., 2d Sess. (1966), 1966 U.S.Code Cong. & Admin.News, pp. 4263-69 [hereinafter Conference Report]. . House Report, at 4249-50; Senate Report, at 13; House Hearings, at 84 (Attorney General Katzenbach), 370 (Myrl Alexander, Director, Bureau of Prisons); 112 Cong.Rec. 11795, 11815, 11821, 11826-27, 11888, 25433, 25434. . House Report, at p. 4250. See also Senate Report, at 13; House Hearings, at 93 (Attorney General Katzenbach); 112 Cong.Rec. 11815, 25419. . House Report, at 4251. See also Senate Report, at 13 (“safeguards to assure adequate protection of the general public against the addict who is or may be a hardened criminal”); House Hearings, at 103 (Acting Assistant Secretary of Treasury Hendrick), 121 (Surgeon General Terry), 230, 368 (Assistant Deputy Attorney General Sanders); Senate Hearings, at 55 (Special Assistant to the Secretary of Treasury Acheson); 112 Cong.Rec. 11796, 11815, 25419, 27616. There was some indication that such offenders should be punished not only to protect society but also because they were not likely to be rehabilitated. House Hearings, at 111 (Acting Assistant Secretary of Treasury Hendrick), 170, 242. But see n. 11 infra. . The two-felony exclusion is derived from the Administration bill, which contained all five of the final exclusions in some form. House Hearings, at 14-15, 17. All of the other House bills considered by the Committee, except for Rep. Cel-ler’s bill, also had a two-felony exclusion. Id. at 1-14, 20-53. The Senate bill did not have such a disqualification. Senate Report at 7-8. In conference, where the House version of Titles I and II were adopted, the two-felony exclusion reappeared. Conference Report, at 2-3, 6; 112 Cong.Ree. 27616. Most references to the two-felony exclusion were made in the course of general descriptions of the five exclusions and their overall purpose. The bill was usually said to exclude violent or dangerous offenders, a reference to the crime of violence and narcotics sale provisions, and hardened offenders or those with a history of offenses, a reference to the two-felony disqualification. See n. 4 supra. No more specific defense or explanation of the latter provision is to be found in the legislative record. All of the relatively few detailed or lengthy comments regarding the two-felony rule were criticisms of its arbitrary exclusion of individuals who were as much in need as and possibly even more likely to respond to treatment than those included by the bill. House Hearings, at 55, 151, 281 (Dr. Henry Brill, Consultant, New York State Department of Mental Hygiene), 357 (letter from Richard McGee, Administrator, California Youth and Adult Corrections Agency); 112 Cong. Rec. 11812. . Rep. Celler’s bill, House Hearings, at 1-14, the Administration’s major competitor in the House, and the Senate bill, S. 2191, as originally introduced, Senate Hearings, at 15-20, applied only to those charged with federal narcotic offenses. In light of the criticism of this limitation as arbitrary and unrealistic, House Hearings, at 121 (Surgeon General Terry), 151, 255 (Bronx Assistant District Attorney Gelfand), 281 (Dr. Henry Brill); Senate Hearings, at 35 (Attorney General Katzenbach), 86 (John Layton, D. C. Chief of Police), 185-86 (Acting Surgeon General Gehrig), 276 (Final Report of President’s Advisory Commission on Narcotic and Drug Abuse), the House passed the Administration bill, the Senate Committee amended S. 2191 to cover all federal offenses, Senate Report, at 4, 17, and the Senate adopted the bill as amended. 112 Cong.Ree. 25434-35. . See, e. g., House Hearings, at 76, 81, 99, 121, 151, 229, 248, 250, 312, 354, 357, 370, 389, 395; Senate Hearings, at 55, 95, 165-68, 177 (witness names omitted). . House Hearings, at 465 (letter of William Foley, Deputy Director, Administrative Office of the U. S. Courts). . House Report, at p. 4252. . Id. See also House Hearings, at 81 (Attorney General Katzenbach). . At argument, the government informed the court that drug abuse programs had recently been established at seven federal prisons, that Bishop, if incarcerated, would be eligible for such treatment, and argued that he thus could not complain of a denial of equal treatment. Even assuming that we can properly consider such evidence not presented to the district court, we find the argument untenable. Although treatment of some sort might be afforded in prison, there are clearly major disadvantages, from both a personal and medical perspective, in being subjected to a prison environment. We note also that the provision of treatment to addicted prisoners causes the government to shift somewhat its explanation of the two-felony disqualification from the original Congressional one, of insuring punishment either to protect society or because of the excluded individuals’ supposed unsuitability for treatment, see n. 4 and accompanying text, supra, to the perhaps medically sounder one of merely excluding from NARA centers potentially disruptive criminal elements. Since, however, under either explanation, the two-felony exclusion is designed to define a class of hardened addict-criminals qualitatively different in their dangerousness or other anti-social characteristics, this shift does not alter our basic inquiry: whether the classification is relevant to that purpose. Of course, insofar as the government sought to defend the disqualification simply as a means of allocating resources, its defense is vitiated by the fact that repeat felons now do receive treatment. . The government claims that Bishop may not challenge the § 4251(f)(4) disqualification because he failed to request at trial a finding, pursuant to Fed.R. Crim.P. 23(c), that the sales he was convicted of were made “for the primary purpose of enabling the offender to obtain a narcotic drug which lie requires for his personal use because of his addiction to such drug”, as required under the § 4251(f) (2) exclusion. We reject this argument because the “operative disqualification”, as Watson called it, 439 F.2d at 456, was the two-prior-felony one; even if Bishop had requested and been granted the above finding, he would still have been disqualified because he had two prior felony convictions. Of course, in light of our decision vacating the 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_authoritydecision	B	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. LAWRENCE et al. v. TEXAS No. 02-102. Argued March 26,2003 Decided June 26, 2003 Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment, post, p. 579. Scalja, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 586. Thomas, J., filed a dissenting opinion, post, p. 605. Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Ratine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer. Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee. Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Po-lowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali. Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. Mc-Master of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fah-ling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton. Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd. Justice Kennedy delivered the opinion of the Court. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions. I The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace. The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows: “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or “(B) the penetration of the genitals or the anus of another person with an object.” §21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a. The Court of Appeals for the Texas Fourteenth District considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. We granted certiorari, 537 U. S. 1044 (2002), to consider three questions: 1. Whether petitioners’ criminal convictions under the Texas “Homosexual Conduct” law — which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples — violate the Fourteenth Amendment guarantee of equal protection of the laws. 2. Whether petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment. 3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert. i. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965). In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: “It is true that in Griswold the right of privacy in question inhered in the marital relationship.... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., at 453. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. In Carey v. Population Services Int’l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick. The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Black-mun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or riot entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes §203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D’Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonproereative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between- adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosécutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18. It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats, p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post -Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats, p. 518 (repealing Nev. Rev. Stat. §201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” 478 U. S., at 196. As with Justice White’s assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631,656. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16. In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court’s decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 (“The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”). The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we con-elude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§15:540-15:549 (West 2003); Miss. Code Ann. §§45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution — A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992). To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a 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_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America ex rel. Caswell LATHAN, Jr., Petitioner-Appellant, v. John DEEGAN, Superintendent of Auburn Correctional Facility, Auburn, New York, Respondent-Appellee. No. 211, Docket 71-1547. United States Court of Appeals, Second Circuit. Argued Oct. 14, 1971. Decided Nov. 1, 1971. John F. Lang, New York City (Allan J. Berdon, New York City, of counsel), for appellant. Brenda Soloff, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee. Before FRIENDLY, Chief Judge, CLARK, Associate Justice, and KAUFMAN, Circuit Judge. United States Supreme Court, retired, sitting by designation. IRVING R. KAUFMAN, Circuit Judge: After more than twelve years of legal maneuvering, Caswell Lathan, Jr. asks this court to reverse the denial of his petition for a writ of habeas corpus based on allegedly involuntary admissions used against him at trial. Lathan was charged with first degree murder for the July 23, 1959, slaying of Gertrude Stransky. He was tried and convicted in the Bronx County Court before Judge Schulz and a jury. Although this conviction was sustained on direct appeal to the Appellate Division and the New York Court of Appeals, People v. Lathan, 15 A.D.2d 906 (1st Dept.), aff’d. 12 N.Y.2d 822, 236 N.Y.S.2d 345, 187 N.E.2d 359 (1962), remittitur amended, 13 N.Y.2d 670, 241 N.Y.S.2d 164, 191 N.E.2d 668 (1963), the Supreme Court of the United States remanded the ease to the New York Court of Appeals for further proceedings consistent with this opinion in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Lathan v. New York, 378 U.S. 566, 84 S.Ct. 1923, 12 L.Ed.2d 1038 (1964). Jackson declared unconstitutional the New York procedure which required defendants to challenge the voluntariness of confessions before the trial jury. In accordance with an order of the New York Court of Appeals, the Bronx County Supreme Court held a Huntley hearing to determine the voluntariness of the confession. People v. Lathan, 15 N.Y.2d 723, 256 N.Y.S.2d 935, 205 N.E.2d 200 (1965). Justice Spector, who presided over the hearing, heard testimony from Lathan and thirteen witnesses for the State. The hearing was anything but perfunctory and a lengthy opinion was filed more than a month after the hearing commenced. Justice Spector, after making detailed findings of fact, concluded that Lathan’s confession was voluntary and thus properly admitted at this trial. This order was affirmed by the Appellate Division, People v. Lathan, 30 A.D.2d 1053, 294 N.Y.S.2d 676 (1st Dept.1968), the Court of Appeals denied leave to appeal and the United States Supreme Court denied certiorari, Lathan v. New York, 397 U.S. 941, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970). Having thus exhausted his state court remedies, Lathan sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in the District Court for the Southern District of New York. Judge Palmieri denied the petition without a hearing, concluding on the basis of the facts found after the full state Huntley hearing that the confession was voluntary as a matter of federal constitutional law. We affirm the order denying the petition for habeas corpus relief. I. A brief statement of the alleged crime and the confession elicited are necessary to an understanding and disposition of Lathan’s claims. Gertrude Stransky was killed in her Bronx apartment on July 23, 1959, by repeated stabbings. In addition, two rings, other jewelry and some cash belonging to her were stolen. The police uncovered fingerprints in the apartment, and a knife, the suspected murder weapon, was found in an automobile parked nearby. Lathan, eighteen years old and on furlough from the Army at the time, was apprehended while burglarizing a Yonkers apartment and was taken to a Yonkers police precinct on August 9. After a short interrogation, Lathan signed a confession to the Yonkers burglary charge. He was arraigned without counsel on August 10 and transferred to the Westchester County Jail. On August 11 two military police, aware only of Lathan’s Yonkers burglary arrest, visited him to ascertain his military status. They testified at the Huntley hearing and Justice Spector found, contrary to Lathan’s claim, that they did not promise Lathan that the military would provide assistance. Meanwhile, the Stransky investigation zeroed in on Lathan. In an hour long session with four detectives, also on August 11, Lathan denied any knowledge of the Stransky homicide. He insisted also that he had not been in the area of the Bronx apartment house on July 23. The man who was to prove to be La-than’s chief antagonist, Detective Tobias Stegman of the New York City Police Department, visited Lathan the next day. Instead of disclosing his identity, however, Stegman, dressed in civilian clothes, introduced himself as a lieutenant-colonel in the army and showed La-than his Army identification card. Close scrutiny of the card would have disclosed that Stegman was a member of the Army Reserves. Stegman spoke with Lathan of his Army experiences and stated “the Army and I want to help you.” The coincidental visit of the military police may have helped create the illusion in Lathan’s mind that the Army was trying to help him. In any event, Lathan began talking about his adventures since leaving his Army post, including a walk to the Bronx on the night of July 23. Lathan revealed that he ascended to the roof of a building to which he had once delivered newspapers and admitted entering an apartment through a window. Stegman then stated to La-than that he knew that a homicide had taken place in that apartment and that Lathan’s fingerprints had been found there. Lathan refused to go beyond his admission that he had entered the apartment in question. After conferring with his associates who had remained outside the interrogation room, Stegman unsuccessfully questioned Lathan again. The total time involved in these sessions was less than two hours. Stegman returned to question Lathan the following day in the Westchester County District Attorney’s Office. After an initial fruitless interrogation, Stegman met with his associates and then returned and confronted Lathan with the murder weapon and a photograph of the victim. Lathan remained firm in his denial that he killed Mrs. Stransky. At this point, Assistant District Attorney Farrell and Chief of Detectives Walsh, entered the room. Walsh now made an unsuccessful attempt to secure a confession from La-than, while Stegman maintained his silence. Walsh and Farrell left after approximately ten minutes, and Lathan was again alone with Stegman. Becoming fully aware that the evidence against him was overwhelming and that his further denials would accomplish nothing, Lathan launched into his detailed confession. At the Huntley hearing, Lathan contended for the first time that he was motivated to confess only after a promise by Stegman that Lathan would be placed in a mental hospital if he admitted committing the homicide. No mention of this alleged promise was made by Lathan when he testified at his original trial, and Stegman’s denial constitutes additional evidence supporting Justice Spector’s finding that Lathan’s testimony was fabricated. With the “cat out of the bag,” Lathan scarcely resisted when he was taken to a room in which Farrell, Walsh, Stegman, a stenographer and several other officers were present and repeated his confession. At this time it was Farrell who conducted the questioning, and Lathan’s responses traced the same path as his previous statements to Stegman. II. Lathan contends that his admissions to Stegman and the question- and-answer- confession given to Farrell were made involuntarily and their introduction rendered his trial constitutionally defective. Manifestly, if Lathan’s statements were secured today without notifying him of his right to counsel and of his right to remain silent, they would be inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda, however, has not been applied retroactively to invalidate confessions introduced at trials commencing prior to June 13, 1966. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Instead, these factors may be considered in the totality of circumstances surrounding the confession in determining its voluntariness. See Clewis v. Texas, 386 U.S. 707, 708-709, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U.S. 737, 740-741, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). Only when accompanied by other circumstances tending to indicate that the will of the defendant was overborne will the absence of counsel or the failure to advise of his fifth amendment right, render the confession involuntary and inadmissible in a pre-Miranda case. See, e. g., Clewis, supra (extremely low intelligence of defendant); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336 10 L.Ed.2d 513 (1963) (prolonged incommunicado detention); United States ex rel. Everett v. Murphy, 329 F.2d 68 (2d Cir.), cert, denied, 377 U.S. 967, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964) (extensive questioning, false promise of police assistance). But none of these factors was found to be present in this ease. Lathan presents several overlapping theories to support his contention that, since Stegman palmed himself off as an Army officer, the confession was rendered inadmissible. Lathan would have us read Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) as holding that any confession following police deception is involuntary. The holding in that case is not nearly so broad. In Spano, a rookie patrolman who was also a close friend of the defendant stated that his job in the Police Department and the welfare of his pregnant wife and three children would be in jeopardy if Spano did not confess. Moreover, Spano already had been indicted for the crime under investigation when he was denied access to his retained attorney and questioned continuously for eight hours by a battery of some fifteen interrogators. No such factors are presented here. Stegman’s representations with respect to the Army were not of such a character as to overbear Lathan’s will so that he was unable to resist pressure, nor was there the slightest indication that he was fatigued. Stegman merely set the scene —whether or not Lathan believed he was an army officer — for Lathan to unburden himself. The confession was, in fact, induced by Stegman’s demonstration that he had hard evidence linking Lathan to the homicide and not, as alleged, by Stegman’s feigned friendliness. It is inconceivable that a person of reasonable intelligence would confess merely to please an acquaintance of one day, which in substance is Lathan’s claim. Nor do the circumstances under which Lathan’s confession was secured come within the proscription of United States ex rel. Everett v. Murphy, supra. In Everett the relator was arrested illegally and detained incommunicado during extensive questioning. His confession followed an outright fabrication of a crucial fact by the interrogator. Although the victim already had died, Everett was advised that the victim was only slightly injured and that the police would help reduce the charges against him if Everett would cooperate by confessing. A mere deception by an interrogator, ipso facto, does not invalidate a confession absent other compelling circumstances. In Everett, we focused on the promise of police assistance to reduce the charges as rendering the confession involuntary, stating that the “deception of Everett as to Finoechiaro’s survival of the attack might be ignored if it stood alone.” Id., 329 F.2d at 70. See also United States ex rel. Caminito v. Murphy, 222 F.2d 698, 700-701 (2d Cir. 1955). Another imperfect arrow in La-than’s quiver is his argument that Stegman may have violated criminal statutes when he posed as an officer in the United States Army and, therefore, that his confession was inadmissible. But the short answer to this is that Stegman was a member of the Army Reserves and legitimately possessed his Army identification card. Thus, it is by no means apparent that Stegman’s alleged conduct violated any of the cited statutes. Finally, assuming arguendo that Stegman did violate one of the statutes, it does not follow that the subsequent confession would be tainted and that such violation would have the consequences for which Lathan contends. It would not aid Lathan if we were to apply a per se exclusionary rule to fruits of the illegality as we do in cases of fourth amendment violations. See, e. g. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is clear to us, as it was to Justice Spector and Judge Palmieri, that La-than’s confession was not a “fruit” of Stegman’s alleged deception. Other arguments urged by Lathan, which are premised on “facts” found at the Huntley to be untrue, need not concern us. See 28 U.S.C. § 2254(d). The order of the District Court is affirmed. . Lathan was sentenced to life imprisonment on June 24, 1960, after a jury recommendation of mercy. . The New York procedure required the court to exclude a confession only if it determined that under no circumstances could it be deemed voluntary. If a “fair question” of voluntariness was presented, the trial jury would hear the evidence and decide the question of voluntariness itself. The Supreme Court found this procedure defective because, inter alia, a jury might find it difficult to exclude from consideration a confession appearing to be true, regardless of its voluntariness. Jackson, 378 U.S. at 381, 84 S.Ct. 1774. . This hearing was held in conformity with the procedure dictated in People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). . Judge Palmieri also denied Lathan’s request for a certificate of probable cause, but on June 3, 1971, this court granted Lathan’s motions for a certificate of probable cause, leave to proceed in forma paup-eris and assignment of counsel. . Since Lathan makes no claim that the state hearing was less than full and fair, we presume the state factual findings to be correct. 28 U.S.C. § 2254(d) provides in relevant part: * * * a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for- the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct. * * * . At no time between the arrest of Lathan on the burglary charge and his confession to the murder charge four days later was Lathan advised that he had a right to remain silent and that any statements he made could be used against him. . The apartment Lathan entered was that of Mrs. Stransky, but Lathan did not admit it at this time. . Lathan described how he entered a bedroom and saw a naked woman, told her to be quiet and she would not be hurt, punched her in the face to quiet her and stabbed her to death. . The length of incarceration here appears deceptive, since for two of the days Lath-an was in custody there was no reference to the Stransky homicide. Moreover, no session lasted more than an hour and the total length of all the sessions was less than eight hours. Claims of physical deprivation made for the first time by Lathan at the Huntley hearing were rejected by Justice Spector. . Judge Palmieri found that Lathan was not in fact deceived by Stegman. Judge Palmieri noted that at the trial Lathan admitted that he suspected Stegman was not an Army officer when Stegman questioned him about the homicide. . Lathan was not one who would be easily taken in. Justice Spector found him to be “keen, imaginative, sharp, elusive and very articulate * * * ” . The confession eventually was used against Everett to secure a first degree murder conviction. . 18 U.S.C. § 912 provides: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined not more than $1,000 or imprisoned not more than three years, or both. 18 U.S.C. makes it a misdemeanor to possess an army identification card except as authorized by law. . Lathan guides us to Reed v. United States, 252 F. 21 (2d Cir. 1918), which upheld the convictions of persons prosecuted for masquerading as military officers for the purpose of arresting deserters for reward. But we find no indication in Reed that the arrests and subsequent courts-martial of those apprehended by the impersonators were affected. 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_direct1	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. UNITED STATES v. DUBY et al. No. 13138. United States Court of Appeals Ninth Circuit. Jan. 30, 1952. j. Charles Dennis, U. S. Atty., John E. Belcher, Asst. U. S. Atty., Seattle, Wash., Cornelius Peck, Atty., Dept, of Justice, Washington, D. C., for appellant. Skeel, McKelvy, Henke, Evenson & Uhlmann and Willard E. Skeel, Seattle, Wash., for appellee. Before STEPHENS, HEALY, and POPE, Circuit Judges. STEPHENS, Circuit Judge. The district court dismissed the complaint of the United States against the defendants, and the United States appealed from the judgment entered thereon as to both defendants, Pat Duby and Continental Casualty Company, but appellant has requested that the appeal as to Duby be dismissed because he has been discharged in bankruptcy. We hereby grant the motion, and now proceed with the appeal as to Continental Casualty Company. The complaint is for damages alleged to arise out of the following basic facts: The United States through the Civil Aeronautics Administrator, a department of the Department of Commerce, contracted with Duby to construct certain concrete check dams and a twin box culvert at the Seattle-Tacoma Airport for $6,602.70, to be paid in progress payments. The work was to be 'completed in thirty days, but because <of some changes the contract completion time was extended sixteen days, and the contract price was raised to $7,562.70. The work was not completed within the contract time, but the government did not exercise its right to take the work over but permitted the contractor, as it had the right to do, to proceed and the work was completed one hundred thirty-three days after the expiration of the contract time. The government claimed liquidated damages of $20 for each day over time in accordance with the contract. No progress payments had been earned or paid within the contract completion time but thereafter progress payments were made as they were earned without deduction of the accrued liquidated damages, until the - final payment, from which $979.82 was withheld: Continental Casualty Company was the surety on the performance bond and also on a separate and independent labor and material bond. The first point raised on appeal is that the court erred in finding that the surety company had no notice of the government’s intention to claim liquidated damages, thus depriving Continental from opportunity to file a claim in the Duby bankruptcy proceedings. We see no clear error in this finding, but even so, the state of the record would not support a conclusion therefrom beneficial to appellee surety for the reason that the bankruptcy proceedings were introduced into evidence and they seem, on their face, to show that nothing out of the estate would Have been distributed to Continental, had it filed a claim. As will be more clearly shown later herein, a compensated surety is not relieved of responsibility by the act of the principal, unless the act prejudices the surety, and then only to the extent of the prejudice if it is reasonably discoverable. The more crucial point in the appeal is whether the surety was released pro tanto, wholly, or at all, by the act of the principal in making the progress payments in full without deducting the accrued liquidated damage sums from the payments. Since the contract completion period had expired before the first progress payment had accrued, and the total payments were $7,562.-70, and the total accrued damages claimed amounted to $2,660.00, it is obvious that all of the claimed accrued damages would have been satisfied had the principal deducted them from the payments as they fell due. We look to the Washington state law, Erie R. R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, and find that an act of the principal which does not prejudice the surety does not release the surety. Therefore, unless the failure to deduct the accrued damages prejudices the surety, it is not released. In Leghorn v. Nydell, 1905, 39 Wash. 17, 80 P. 833, and Monro v. Nat’l Surety Co., 1907, 47 Wash. 488, 92 P. 280, 282, there were advances made on the progress payments but the advances were deducted from the progress payments when the latter were made. Held: no prejudice resulted to the surety. In the Monro case it is said that “* * * in no event could the premature payments constitute a defense beyond the amount of the advancements made, and not at all unless the payments operated to the prejudice of the bonding company.” This is according to the pro tanto doctrine. Again, in City of Tacoma v. Peterson, 1933, 174 Wash. 621, 25 P.2d 1034, 1035, the Washington State Supreme Court reviewed the cases and deducted the following rule: “The rule then is that a surety cannot complain of an advance made while the work is in progress which assists the contractor to perform and which is deducted at or before the time of the last payment. Such* is not the situation here. The wrongful payment was here made, not to assist the contractor in performing, but after the work had been completed, and no purpose beneficial to the surety was or could be served. “The respondent surety, upon the other hand [and the court approves the principle], urges'that it is a well-settled rule at law that when the rights of a surety are involved the obligee must deduct from the payments any sum owing to it, otherwise the surety will be discharged; * * [Emphasis ours.] The court cited Wood v. Brown, 8 Cir., 1900, 104 F. 203, and two Pennsylvania state cases. Wood v. Brown is authority for the principle that the discharge is only to the extent of the prejudice. We adhere to this holding. We have emphasized the words “rights of a surety” for the purpose of indicating dearly that the rule quoted in the first preceding quoted paragraph is not modified by the second quoted paragraph, unless the rights of the surety are affected; or in other words, unless the surety has been prejudiced. .The district' court in the instant case found, upon sufficient evidence, that the delay did cause damage to the government and the damage under the contract was for $20 for each day over the contract time, but denied any relief because the accrued liquidated damages were not deducted from the sums due on the progress payments. We think the court was wrong in holding, as it seems to have done, that failure to deduct the accrued damages from the payment vitiated the surety liability or contract. Instead, the court should have considered all appropriate evidence as to whether the payment of the full progress sums actually prejudiced the surety, and to what extent. “There is a special factor to be considered in the case of a building contract, or any other contract the financing of which requires a progressive expenditure in the course of performance. In ' these cases, one reason for providing for instalment payments as construction proceeds is to supply the funds necessary for the agreed performance: and failure to pay one or more instalments is more likely to cause inconvenience and difficulty to the building contractor. Therefore, a failure to make one of the progress payments, even though the contract is not divisible into pairs of separate equivalents and the instalment unpaid is only a small part of' the whole consideration, is more likely to justify suspension of performance by the builder, or even the total renunciation of further duty. There are many eases holding that nonpayment has It appears from the record that only a part of the completion payment was withheld from the contractor. If the government intended to hold the surety for liquidated damages, the whole of the completion payment should have been withheld, unless the part paid was subject to liens. If, in a retrial of the case, the surety is held liable for the liquidated damages, this point should be taken into consideration so that any sum paid the contractor after completion of the work should be credited to the surety. As to whether, in the circumstances of this case, the contractor was in law released upon completion and acceptance of the work and whether, if he was released, the surety was thereby released as surety, we make no expression, since the court made no specific findings or conclusions on the subject, and since these problems may well be affected by additional evidence and findings in a retrial of the case. justified such a suspension or renunciation.” See, e. g., Phillips & Colby Construction Co. v. Seymour, 1875, 91 U.S. 646, 23 L.Ed. 341; Knotts v. Clark Construction Co., 7 Cir., 1917, 249 P. 181; Michigan Yacht & Power Co. v. Busch, 6 Cir., 1906, 143 F. 929; Beltinck v. Tacoma Theater Co., 1910, 61 Wash. 132, 111 P. 1045; Guerini Stone Co. v. P. J. Carlin Construction Co., 1919, 248 U.S. 334, 39 S.Ct. 102, 63 L.Ed. 275. “The legal effect of a nonpayment must be considered in the light of its practical effects upon performance by the builder, especially those .effects that the debtor had reason to know.” 3 Corbin on Contracts § 692. There is also a presumption “ * * * that all men are, in law, presumed to be able to meet their just obligations until the contrary is shown.” City of Tacoma v. Peterson, 1933, 174 Wash. 621, 25 P. 2d 1034, 1035. We note that the court found that the contractor’s encounter with quicksand and excessive rainfall “rendered completion of the work within the time limited under the contract most difficult and burdensome”, and that the presence of the quicksand was unknown to either of the contracting parties. There was, however, no finding or conclusion as to whether the presence of quicksand would have been discovered if reasonable investigation had been made. Whether such a suggested finding may or may not be material we do not decide. Reversed and remanded. . 3 Corbin on Contracts § 692: “Nonpayment of an Instalment on a Construction or Service Contract. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_r_bus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Otho J. BLOCKSON, Jr., Petitioner-Appellant, v. Arnold R. JAGO, Superintendent, Respondent-Appellee. No. 78-3126. United States Court of Appeals, Sixth Circuit. Submitted Oct. 4, 1978. Decided Nov. 7, 1978. Otho J. Blockson, Jr., pro se. William J. Brown, Atty. Gen. of Ohio, Richard David Drake, Columbus, Ohio, for respondent. Before PHILLIPS, Chief Judge, MERRITT, Circuit Judge, and PECK, Senior Circuit Judge. PER CURIAM. Otho J. Blockson, Jr., appeals from the denial of his application for a writ of habe-as corpus. He was convicted at a jury trial in the Court of Common Pleas of Ashtabula County, Ohio, of rape in violation of Ohio Revised Code § 2907.02 and aggravated burglary in violation of Ohio Revised Code § 2911.11. The Ohio Court of Appeals of Ashtabula County affirmed the conviction. In one of the four assignments of error in his appeal to that court, Blockson contended that the trial court erred in failing to grant his motion to suppress evidence and in admitting in-custodial statements made by him prior to his being provided with Miranda warnings. The Supreme Court of Ohio dismissed an appeal raising the same issues, holding that no substantial constitutional question was presented. Chief District Judge David S. Porter denied the application for a writ of habeas corpus by an order entered December 20, 1977. This appeal followed. At approximately 11:30 a. m. on June 25, 1975, a 79 year old woman was awakened, by a male intruder, while taking a nap in a living room chair at her home in Ashtabula, Ohio. The intruder held a knife with a six inch serrated blade near her face and ordered her to go upstairs to a bedroom, disrobe and lie in bed with her eyes shut. As soon as she complied with his orders, the intruder inserted his penis into her vagina, gave her several thrusts, but quickly stopped and left. A neighbor woman saw a man run past her back door at approximately noon and heard the man crash into a deep ravine near her home. A policeman had been dispatched to the vicinity of the assault to investigate an automobile bearing no license plates. A teenage boy told the policeman that a man was hanging to a tree in the ravine. With the help of other police officers and the use of a rope, Blockson was rescued from the ravine, handcuffed and placed in a police cruiser. Immediately after being placed in the cruiser, and without any questioning of Blockson by the police, except for his name and address, Blockson “blurted out” that he was sorry for what he had done to the old lady, that he had been in her house and that he was ashamed of what he had done. The officers testified that Blockson’s statements were made voluntarily, immediately after he entered the cruiser, and were not made in response to any interrogation. Blockson then directed the officers to the residence where his victim lived. While on the way to the police station, and again without any interrogation, Blockson “blurted out” that he was sorry about the old lady, that he had done it before, and that he could not help himself. Prior to the trial, Blockson moved to suppress his statements on the ground that no Miranda warnings were given. After an evidentiary hearing, the State trial judge overruled the motion to suppress. The record fully supports the holding of the district court and the Court of Appeals of Ohio that the statements of Blockson were not in response to any interrogation, but were made freely from an apparent concern for the life of his victim. The Ohio Court of Appeals observed that “[h]e apparently was concerned that due to her age, coupled with fear and anxiety, she might have died and he did not wish to face a homicide charge.” The opinion in Miranda expressly states: “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, 384 U.S 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). See also United States v. DeBose, 410 F.2d 1273 (6th Cir. 1969), cert. denied, 401 U.S. 920, 91 S.Ct. 906, 27 L.Ed.2d 823 (1971). We conclude that no federal constitutional rights of appellant were violated by the order of the State trial court denying the motion to suppress or by the admission of the foregoing volunteered self-incriminating statements into evidence. Blockson further challenges the weight and sufficiency of the evidence. This issue is not cognizable in a federal habeas corpus action unless the conviction is totally devoid of evidentiary support as to a crucial element of the offense. Brooks v. Rose, 520 F.2d 775 (6th Cir, 1975). The judgment of the district court is affirmed. . It was later established that the automobile belonged to Blockson. 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_casetyp1_4-3	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 "due process". Jose A. MARTINEZ-VELEZ, Plaintiff, Appellant, v. Jose A. SIMONET, et al., Defendants, Appellees. No. 90-1424. United States Court of Appeals, First Circuit. Heard Oct. 5, 1990. Decided Nov. 28, 1990. Victor E. Baez, with whom José A. Gal-lart, was on brief, for plaintiff, appellant. Fernando Luis De Jesús-Martinez, with whom Oscar González-Badillo, Jorge R. Dávila, González-Badillo and Dávila, were on brief, for defendants, appellees. Before TORRUELLA, Circuit Judge, TIMBERS, Senior Circuit Judge, and CYR, Circuit Judge. Of the Second Circuit, sitting by designation. TORRUELLA, Circuit Judge. Plaintiff-appellant José A. Martinez-Vélez brought suit in the United States District Court for the District of Puerto Rico, 726 F.Supp. 891 against the individual members of the Puerto Rico veterinary licensing board, José A. Simonet, Herbert R. Gómez, José D. Rivera-Anaya, and Walter R. Colón-Lilley, under 42 U.S.C. § 1983 for wrongfully depriving him of a veterinary license without due process of law. In the proceedings below, defendants-appellees sought and were granted summary judgment. Appellant now appeals that ruling along with the district court’s denial of appellant’s Fed.R.Civ.P. 59(e) motion to vacate judgment. We affirm the judgment below but base our holding on reasons other than those relied upon by the district court. FACTS All parties are in agreement regarding the facts of this case. In 1985, after receiving a degree in veterinary medicine from the Tuskegee Institute in Alabama, appellant applied to take the local veterinary license examination in Puerto Rico. While awaiting the examination date, appellant applied for and was granted a provisional license. The terms of the provisional license required appellant to work under the supervision of a licensed veterinarian. The veterinarian named by appellant in his application was Dr. José A. Diaz-Umpierre. Instead of working for Dr. Diaz-Umpierre, however, appellant accepted a part-time position with Dr. Carlos Muratti, also a licensed veterinarian. Appellant did not notify the licensing board of this change. On August 5-7, 1985, appellant took the license examination as planned. Prior to the release of his scores, however, he became the subject of an ethical investigation by the veterinary licensing board. Inquiry arose when a local veterinarian, Dr. Miguel A. Borri-Diaz, submitted to the licensing board a sworn statement alleging that appellant was reportedly violating the terms of his provisional license by practicing under a veterinarian not named in his application and illegally practicing veterinary medicine by being on call without the supervision of a licensed veterinarian. Pending resolution of these charges, the licensing board decided not to release appellant’s examination scores. The licensing board did not, however, revoke appellant’s provisional license. Appellant was permitted to continue practicing veterinary medicine under his provisional license until the ethical charges against him were resolved. An administrative hearing was originally scheduled for October 24, 1985, but was postponed twice at appellant’s attorney’s request. On February 20, 1986, a hearing was finally held, and appellant was unofficially told that he had received a passing score on his examination. The hearing officer in charge found in favor of appellant and recommended to the licensing board that all charges against appellant be dropped. In accordance with the hearing officer’s recommendation, the licensing board officially released appellant’s examination scores and issued appellant a permanent veterinary license on June 12, 1986. In addition, the licensing board excused appellant from complying with the statutory requirement of one year of public service ordinarily required of all new veterinarians. STANDARD OF REVIEW Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The court must review the record, together with all reasonable inferences therefrom, in the light most favorable to the non-moving party. Johnson v. Educational Testing Service, 754 F.2d 20, 25 (1st Cir.), cert. denied, 472 U.S. 1029, 105 S.Ct. 3504, 87 L.Ed.2d 635 (1985). DISCUSSION In order to establish a § 1983 violation, the complaining party must prove (1) that “the conduct complained of was committed by a person acting under color of state law” and (2) that the conduct deprived the complaining party “of rights, privileges or immunities secured by the Constitution or laws of the United States.” Parrat v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981); 42 U.S.C. § 1983. The parties do not dispute the district court’s finding that the licensing board acted under color of state law in this case. The contested issue is whether the second element of Parrat has been satisfied. Appellant argues that it has. The district court agreed with appellees that it has not. We reach the same conclusion as the district court but for different reasons. Was Appellant Deprived of a Property Right? It is generally recognized that state law can endow an individual with a property interest. Board of Regents of State Colleges, et al. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). “To have a property interest in a [state] benefit,” however, one “must have more than an abstract need or desire for it. [One] must have more than a unilateral expectation of it. [One] must, instead, have a legitimate claim of entitlement to it.” Id. Appellant contends that veterinary license applicants become entitled to their licenses when they receive passing scores on the license examination and that the licensing board cannot withhold an applicant’s score or license even though an ethical investigation is pending. Appellant claims that the proper procedure is for the licensing board to issue the license and then later revoke it if the investigation is resolved against the applicant. Therefore, appellant argues, the licensing board wrongfully withheld his examination scores. Furthermore, by doing so, the licensing board deprived him of a property interest, his license, without due process of law in violation of 42 U.S.C. § 1983. The district court found that the one year of public service required of all new veterinarians by Puerto Rico law is a prerequisite for entitlement to a permanent veterinary license. Since appellant had not yet performed one year of public service, the district court held that he could not have gained a property interest in his license. Appellant correctly notes on appeal, however, that a veterinary license applicant cannot even be considered for public service until after he or she has been determined to have passed the license examination. Puerto Rico law states: Every person who wishes to obtain a permanent license in any health-related profession in Puerto Rico shall serve for a period of one (1) year in the public service, after having fulfilled the requirements established by the respective acts that regulate each profession. 20 L.P.R.A. § 71 (emphasis added). Withholding of appellant’s scores by the licensing board precluded appellant from consideration for public service by the Secretary of Health, and consequently, appellant argues, from issuance of a license. Appellant is correct, but only up to a point. The Puerto Rico statute clearly states that the applicant’s examination scores shall be issued within 60 days of the close of the examination. 20 L.P.R.A. § 2959(b). However, even assuming that failure to do so under ordinary circumstances might constitute a deprivation of the applicant’s rights in obtaining a license to which the applicant has otherwise become entitled, this case is not one involving ordinary circumstances. In this case the applicant, appellant, was the subject of a legitimate ethical investigation by the licensing board. There is an additional provision under Puerto Rico law which requires a veterinary license applicant to pass ethical scrutiny before a license will be issued to that applicant. Id. at § 2958(b). The licensing board was thereby justified in withholding issuance of appellant’s veterinary license until the investigation was resolved. The fact that appellant was deprived of his examination scores in the interim in no way affected whether appellant would ultimately receive a license. In fact, appellant was unofficially issued his scores at the commencement of the administrative hearing and was issued a license within a reasonable time after it was determined that the charges against him should be dropped. The administrative proceeding itself provided appellant with sufficient due process. The charges against appellant were well-founded. Appellant was in fact practicing under a veterinarian not named in his provisional license application. That fact alone created sufficient ground for an ethical inquiry regardless of whether the charge of being on unsupervised call was unfounded, as claimed by appellant. In addition, the original hearing was scheduled for October 24, 1985, just 24 days after examination scores were released to the other applicants. The fact that a hearing did not actually take place until February 20, 1986, cannot in any way be attributed to appellees’ conduct. Both postponements were at the request of appellant. Moreover, during the entire process appellant was represented by able counsel, evidenced most notably by the fact that appellant ultimately prevailed, receiving his veterinary license as well as a waiver of the one year public service requirement. In fact, we do not see that appellant has suffered any injury as a result of the licensing board’s decision to withhold his scores. Had appellant been issued his examination scores in October 1985 and not been exempted from the one year public service requirement at that time, appellant would not have been free to practice veterinary medicine privately until October 1986. Although appellant was forced to wait seven months longer than the other applicants before being considered for public service, the fact that his public service requirement was waived actually allowed him to practice private veterinary medicine earlier than he might have otherwise. Moreover, during the ethical investigation, appellant was allowed to continue practicing veterinary medicine under his provisional license. Therefore, at no time was he deprived of his livelihood or the right to practice his chosen profession. For the reasons stated above, the district court judgment granting summary judgment to appellees is Affirmed. Double costs to appellees. . Suit against the veterinary licensing board as an entity was voluntarily dismissed by appellant, and suit against a fifth defendant, Aníbal González-Turull, was dismissed by the court for lack of prosecution. . "If the Board determines that the applicant has the proper qualifications and has good moral repute in the community, [that person] shall be admitted to take the revalidation examination. ...” 20 L.P.R.A. § 2958(b) (emphasis added). Appellant in the instant case was able to take the license examination before the ethical investigation against him was resolved because questions regarding his ethical fitness did not arise until after he had taken the examination. . Puerto Rico law provides that The Board has the power and duty to: (a) examine and evaluate the moral and academic qualifications of each revalidation examination applicant, leading to obtaining a license to practice veterinary medicine in Puerto Rico ... (b) issue, renew, deny, suspend or revoke permanent or provisional licenses for the practice of veterinary medicine in Puerto Rico, and also take disciplinary actions with regard to the license holders, which are in accordance with this chapter and the regulations promulgated hereunder. 20 L.P.R.A. § 2956. . Due process requires notice and an opportunity to be heard. Goldberg v. Kelly, 397 U.S. 254, 267-68, 90 S.Ct. 1011, 1020-21, 25 L.Ed.2d 287 (1970). . Examination scores were officially released October 1, 1985. Question: What is the specific issue in the case within the general category of "due process"? A. denial of fair hearing or notice - government employees (includes claims of terminated government workers) B. denial of hearing or notice in non-employment context C. taking clause (i.e., denial of due process under the "taking" clause of the 5th or 14th Amendments) D. freedom of information act and other claims of rights of access (includes all cases involving dispute over requests for information even if it does not involve the freedom of information act) E. other due process issues 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. GAMBLE ENTERPRISES, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 11405. United States Court of Appeals Sixth Circuit. April 10, 1953. Supplemental Order April 21, 1953. Jones, Day, Cockley & Reavis, Cleveland, Ohio, for petitioner. Geo. J. Bott, A. Norman Somers, Washington, D. C., for respondent. Herschcl Kriger, Canton, Ohio, and Henry Kaiser, Washington, D. C., for in-tervenor. PER CURIAM. In pursuance of a Mandate from the Supreme Court of the United States, after the announcement of its decision, 345 U.S. 117, 73 S.Ct. 560, reversing our judgment of May 9, 1952, 196 F.2d 61, It is now ordered that our judgment and order are set aside and held for naught and the cause is remanded to the National Labor Relations Board for further proceedings not inconsistent with the opinion and mandate of the Supreme Court. Supplemental Order PER CURIAM. Our order of April 10, 1953 remanding the cause to the National Labor Relations Board for further proceedings, 202 F,2d 954, is set aside and the following order is to be entered. In pursuance of a mandate from the Supreme Court of the United States, after the announcement of its decision reversing our judgment of May 9, 1952, 196 F.2d 61, it is now ordered and adjudged that our judgment entered in the said cause on the 9th day of May, 1952, is in conformity with the opinion of the Supreme Court of the United States, 345 U.S. 117, 73 S.Ct. 560, and its mandate therein is Reversed and the petition to set aside the order of the National Labor Relations Board dismissing the complaint against Local No. 24 American Federation of Musicians is denied and the said order, is affirmed. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_othcrim	B	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES ex rel. Alton CANNON, Appellee, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Attica, New York, Appellant. No. 77, Docket 75-2056. United States Court of Appeals, Second Circuit. Argued Oct. 22, 1975. Decided Dec. 18, 1975. Melvin Bressler, Rochester, N. Y. (Jack B. Lazarus, Dist. Atty. of Monroe County, N. Y., on the brief), for appellant. Frederick A. Provorny, Washington, D. C. , for appellee. Before MOORE, FEINBERG and VAN GRAAFEILAND, Circuit Judges. FEINBERG, Circuit Judge: Two years ago, this court heard an appeal by Alton Cannon, a prisoner in state custody, from the denial by the United States District Court for the Western District of New York of his petition for a writ of habeas corpus. Cannon attacked his state conviction of first degree rape on a number of grounds, all but one of which we rejected. United States ex rel. Cannon v. Montanye, 486 F.2d 263 (1973), cert. denied sub nom. Cannon v. Smith, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974). The exception was Cannon’s claim that the victim s identifications of him at a lineup and later at trial were constitutionally tainted by an improper lineup. On that issue, we remanded the case to the district court for a further hearing on whether the lineup had been “so impermissibly •suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The reasons for the remand, as will be explained further below, were that neither the state trial court nor the federal district court had considered one aspect of appellant’s lineup claim and the record on that “significant factual question” was, therefore, “sparse.” 486 F.2d at 268. Our decision to remand was unanimous, although Judge Friendly, dissenting in part, would' have granted the writ in any event because of another alleged error of constitutional proportions in the conduct of the state trial. Upon remand, Chief Judge John T. Curtin held an evidentiary hearing and concluded that “the possibility of irreparable misidentification was so great that it was error to admit [at the state trial] any testimony with regard to identification at all.” 388 F.Supp. 1201, at 1204. The judge granted the writ, releasing Cannon from custody “unless the respondent commences proceedings within thirty days to afford the petitioner a new trial.” Id. Respondent Harold J. Smith, Superintendent of Attica Correctional Facility appeals. For reasons set forth below, we affirm the judgment of the district court. I Familiarity with our prior opinion will be assumed, and we will state the essential facts very briefly. Almost five days after the crime had been committed, the victim identified Cannon in a lineup with four other males of similar race and size. When picked up in his hotel room earlier that day, Cannon had been directed to put on a green sweater or shirt. This was significant because the police knew that the victim’s initial description was “almost valueless,” except that she had gotten “a glimpse of a green shirt.” 388 F.Supp. at 1202, 1204. On the prior appeal, what most troubled this court about the identification was the dress of the other men in the lineup. Citing, inter alia, Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), we pointed out that the method used to identify Cannon might well have been unduly suggestive, particularly in view of the possible “police complicity in arranging an unfair lineup.” 486 F.2d at 267. Noting that the record of the state Wade hearing did not indicate the color of the clothes worn by the other men in the lineup, we said: If all were dressed in green the inference of undue suggestion would clearly fail. If one or two had on green shirts, the inference would weaken very considerably. On the other hand, if the inference remained, it would acquire great importance in a case where the victim’s “opportunity ... to view the criminal at the time of the crime” was limited. 486 F.2d at 268. Since the significance of the green shirt had not been explored, we declined “to decide the ultimate issue of taint.” Id. Instead, we remanded to the district court to conduct a Wade hearing itself, “taking into account the factors which we have cited,” or to hold the case while the state court did so. Upon remand, the district court followed the former course. At the hearing, the only witness offered by the state was William Mahoney, Chief of Detectives for the Monroe County Sheriff’s Department in Rochester, New York. In 1968, Mahoney had conducted the challenged lineup with the assistance of then Lieutenant George Reiss and Detective Daniel Funk. There were no other witnesses for the state, although Reiss and Funk were still in the employ of the Rochester Police Department and there was no indication that either was unavailable. Cannon produced no witnesses. In his direct testimony, Mahoney stated that one of the four men in the lineup with Cannon “was wearing a green sweater similar, in fact, almost identical,” to the one Cannon had on. However, as Judge Curtin put it: “Cross-examination considerably weakened Mahoney’s testimony.” 388 F.Supp. at 1203. The judge obviously did not believe Ma-honey, stating that his testimony “can only be characterized as equivocal,” and that “at least three or four, if not all of the other men in the lineup, were not wearing shirts anything like Cannon’s.” 388 F.Supp. at 1203-04. The judge also noted that the state’s failure to call other available witnesses “when they have sided with the state in the past, indicates that their testimony would have been unfavorable.” Id. From the record in the state court and the hearing before him, Judge Curtin found that the lineup was impermissibly suggestive. Pointing out that “the victim was unable to see the perpetrator’s face, that her initial description to the police was of no real value, and that the lineup was not held “until almost five days had passed,” the judge felt forced to conclude that the possibility of irreparable misidentification was so great that it was error to admit any testimony with regard to identification at all. Id. Finally, the judge concluded that the error was “constitutionally harmful” because “there was almost no other conclusive evidence introduced at the trial.” Id. II On this record of careful findings by a conscientious judge after a remand for just that purpose, appellant Superintendent has a particularly heavy burden to overcome. We conclude that he has not done so; though appellant offers a number of arguments, we find them unpersuasive. Appellant says that the hearing on remand was a continuation of the state Wade hearing and that once all the testimony was in, Judge Curtin should have given more weight to the conclusion of the state trial judge and the trial jury that Mahoney was a credible witness. He also argues that Mahoney’s testimony was not ambiguous or equivocal. But Judge Curtin, as the trier of fact, was free to disbelieve Mahoney, whether or not the state trial judge would have reacted the same way. Appellant argues that our remand “somewhat narrowed the normal scope of discretion” in the district court. This is incorrect. Our remand obviously contemplated that the district court could hear further evidence and decide the still unresolved factual and legal issues either way, so long as conflicting inferences were fairly available. Perhaps what appellant really means is that on the record as it now stands Judge Curtin could decide the issues only one way as a matter of law. But this is clearly not so. Mahoney’s testimony, if not credited on the key issue, or even if credited only in part, allowed the inferences that the police had made Cannon put on a green shirt and that this unfairly led to a misidentification. Appellant also maintains that the victim had an independent basis for her in-court identification, which neither the state court nor Judge Curtin apparently considered. On the evidence, the existence of such an independent basis was unlikely. More important, on this record it would not cure the error in allowing evidence at trial of the unfair lineup identification. Appellant also contends that the judge improperly shifted to the state the burden of persuasion in the habeas proceeding by inferring that various uncalled witnesses would testify unfavorably to its position and by not requiring Cannon to call witnesses. The argument is unsound. Certainly, the state’s failure to call Reiss and Funk, both of whom had been present at the lineup and were still in the state’s employ, allowed the trier of fact to infer that their testimony would be unfavorable. This is particularly so when the trier of fact gives notice, as Judge Curtin did here, that he might draw the inference because of the failure to produce such a witness. Moreover, even if the inference had been unavailable, the judge was entitled on this record to find, as he did, that apart from Cannon no more than one, possibly not even one, person in the lineup wore a green shirt. In our prior opinion, we pointed out that an inference of “undue suggestion” would then still be permissible, which “would acquire great importance.” 486 F.2d at 268. Finally, Judge Curtin did not improperly shift the burden of persuasion. That Cannon produced no witnesses at the hearing is of no moment, for by the time the case came to Judge Curtin on remand, Cannon had made out a sufficient case to allow granting the writ. The evidence before Judge Curtin did not compel a contrary conclusion. In sum, we find that Judge Cur-tin committed no error. At least one of us in the position of the district judge on remand might have followed this court’s earlier suggestion to let the state court conduct the further hearing or might not have decided the case in the same way as Judge Curtin did but that is not the issue. The question is whether the judge made any clearly erroneous findings of fact or incorrect conclusions of law. Finding the answer in the negative, we affirm the judgment of the district court. . Cannon’s petition for certiorari sought review of the issues decided against him by this court. The Attorney General of the State of New York opposed the petition primarily on the ground that the judgment was interlocutory because we had remanded on one issue, and the other issues could be rendered moot if the district court finally did issue the writ. Justices Douglas, Brennan and Marshall dissented from the denial of certiorari. . Judge Friendly characterized this as “the rare state prisoner habeas appeal where there is reasonable doubt whether petitioner committed the crime.” 486 F.2d at 268. Judge Lumbard, also a member of the earlier panel, later agreed that this was the “rare” case where “a claim of innocence could be seriously advanced.” Ralls v. Manson, 503 F.2d 491, 494 & n. 1 (2d Cir. 1974) (concurring opinion). . By then, Cannon had served some six years of his original sentence of six years and eight months to 20 years. The state raised no objection to Cannon’s release pending this appeal. . Although the Attorney General represented respondent on the prior appeal and in the remand proceedings before Judge Curtin, on this appeal respondent is represented by the District Attorney of Monroe County. . One of the uncalled witnesses, Lt. Reiss, had been the officer who directed Cannon to put on a green shirt. - . . he had a green shirt on, dark pants and black shoes. He was a male negro. He was on the thin side.” . Appellant’s Brief, at 9. . United States v. Beekman, 155 F.2d 580, 584 (2d Cir. 1946). Cf. United States v. Ploof, 464 F.2d 116, 119 (2d Cir.), cert. denied sub nom. Godin v. United States, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972); United States v. Crisona, 416 F.2d 107, 118 (2d Cir. 1969), cert. denied sub nom. Delyra v. U. S., 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970). See generally McCormick, Evidence § 272, at 656-59 (2d ed. 1973); 2 Wigmore, Evidence §§ 285-88 (3d ed. 1940). . A third potential witness, Detective McDonald, had been at the lineup “part of the time,” and was apparently available, although retired. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_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. Carol Anne KLEEMANN, Individually and as the Executrix and Personal Representative of the Estate of Henry M. Kleemann, as the Guardian of the minors Katherine M. Kleemann and Michael Andrew Kleemann; Susan E. Seiden; S.S. Seiden, Jr., Plaintiffs-Appellants, v. McDonnell DOUGLAS CORPORATION, Defendant-Appellee. Carol Anne KLEEMANN, Individually and as the Executrix and Personal Representative of the Estate of Henry M. Kleemann, as the Guardian of the minors Katherine M. Kleemann and Michael Andrew Kleemann; Susan E. Seiden; S.S. Seiden, Jr., Plaintiffs-Appellees, v. McDonnell DOUGLAS CORPORATION, Defendant-Appellant. Nos. 89-2032, 89-2047. United States Court of Appeals, Fourth Circuit. Argued Oct. 4, 1989. Decided Dec. 6, 1989. Rehearing and Rehearing In Banc Denied Dec. 29,1989. Robert Sibley Cooper, Jr., for plaintiffs-appellants. Thomas C. Walsh (Douglas E. Winter, Robert W. Shely, Bryan, Cave, McPheeters & McRoberts; George L. Russell, Jr., Robert J. Mathias, Piper & Marbury, on brief), for defendant-appellee. Before WILKINSON, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation. Judge Haynsworth participated in the consideration of this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d). WILKINSON, Circuit Judge: To avoid liability for accidents involving military equipment, military contractors are required to show, inter alia, that their products conformed to reasonably precise specifications approved by the United States. Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Here we must decide what conformity means. Plaintiffs allege that the landing gear of an F/A-18 aircraft, in which plaintiffs’ decedent was killed, did not conform to general performance requirements contained in defendant’s original contract with the Navy. We cannot, however, equate as a matter of law a failure of performance with an absence of conformity. Nor do the precatory goals developed for a product at the start of the procurement process establish the “reasonably precise specifications” to which the product must conform. Because the landing gear plainly did not deviate from the ultimate design required by the Navy in the whole of its negotiations with the contractor, we uphold the grant of summary judgment for defendant and affirm the applicability of the government contractor defense to this case. I. On December 3, 1985, Captain Henry M. Kleemann, a U.S. Navy pilot, was killed when his F/A-18 aircraft went out of control during landing, left the runway, and overturned. Defendant McDonnell Douglas Corporation (MDC) had designed the F/A-18 for the Navy. The Navy concluded that Captain Kleemann’s accident was caused, in part, by failure of the planing link assembly on the main landing gear. The planing link assembly was designed to assist folding and unfolding the wheel assemblies into and from the wheel well and to lock the wheels appropriately for takeoff and landing. It allows the wheels to “deplane,” or move out of line with the direction of the aircraft, during retraction and extension of the landing gear. Kleemann’s surviving spouse and children brought a diversity action in the district court of Maryland claiming that the plane was negligently and defectively designed by McDonnell Douglas. Plaintiffs contended that the landing gear did not conform to reasonably precise specifications contained in the Navy’s original contract with MDC. Specifically, they alleged that the landing gear failed to meet the requirement that it withstand normal landing loads without bending, unlocking or causing uncontrolled motion of the aircraft (citing SD-24K-Volume I, and Military Specification MIL-A-8863A). Defendant, on the other hand, argued that the specifications proffered by plaintiff were not the “reasonably precise specifications” required by Boyle, because such general requirements do not tell the contractor what to build and how to design the product. MDC contended that the accident aircraft incorporated all Navy-approved landing gear designs and modifications through the date of delivery. As such, the landing gear conformed to all precise, quantitative specifications which evolved out of the continuous exchange between MDC and the Navy. The district court held that the operative question was whether the product conformed to the “ultimate design specifications,” not to qualitative, precatory specifications used in the procurement process. The court concluded that plaintiffs had not presented evidence that the landing gear on the accident aircraft deviated from the ultimate design specifications approved by the Navy. It granted defendant’s motion for summary judgment, and this appeal followed. II. We review at the outset the elements of the government contractor defense. Under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442 (1988), a contractor is not liable for design defects in military equipment when: (1) the United States approved “reasonably precise specifications;” (2) the equipment conformed to those specifications; and (3) the contractor warned the government about any dangers in the use of the equipment that were known to the contractor but not to the government. Plaintiffs’ claim is precisely the sort for which the defense was intended. This is true both because of the nature of defendant’s product and the characteristics of the process by which it was designed. At issue here is a discretionary decision involving military hardware in which the government was a substantial participant. See Boyle, 108 S.Ct. at 2517. The F/A-18 aircraft was part of a broad defense initiative involving the Navy’s deployment of a new “CV” class of aircraft carrier. The “CY” carrier had multi-mission capabilities as compared to older, more specialized counterparts. The F/A-18 was designed to provide support for the new carrier, and to replace with a single aircraft the Navy’s clear weather fighters and all-weather fighters. It is hard to imagine a matter more uniquely in the province of the military — and one less appropriate to second-guessing by civilian courts — than the development of a high technology, multi-mission aircraft. See id. at 2517-18. Similarly, the design details of the F/A-18 illustrate the balancing of military and technological factors, including “the trade-off between greater safety and greater combat effectiveness.” Id. at 2517. For example, the main landing gear at issue here had to absorb extremely high amounts of energy generated upon landing on a carrier. On the other hand, stowage of the gears could not interfere with external weapon storage. These competing concerns required a unique “levered gear” design to provide adequate distance between the extended right and left main landing gears and thereby ensure stability of the aircraft upon landing. The design, developed by MDC and approved by the Navy, employed a planing link assembly to deplane the wheels during retraction and extension of the landing gear. The design and production of the F/A-18 also illustrate the exchange of views in the procurement process between military officials and the private contractor. See Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989); Tozer v. LTV Corp., 792 F.2d 403, 407 (4th Cir.1986). Beginning with bids for what would become the F/A-18, teams of Navy engineers met with each contractor for extended discussions of their submissions. When the Navy selected MDC to develop and build the F/A-18, the final design contracts for the aircraft incorporated MDC’s original proposal as modified during extensive negotiations between the parties. During design development, MDC was required to submit detailed engineering drawings to the Navy for approval. All changes to the design or specifications of the aircraft required Navy approval, including proposals to address problems with the allegedly defective landing gear. The government also maintained an extensive staff of aircraft engineers on site at MDC’s facilities in St. Louis. It is this salient fact of governmental participation in the various stages of the aircraft’s development that establishes the military contractor defense. Indeed, active governmental oversight is relevant to all three elements of defendant’s burden. Where, as here, the Navy was intimately involved at various stages of the design and development process, the required government approval of the alleged design defect is more likely to be made out. See Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950-51 (4th Cir.1989); Dowd v. Textron Inc., 792 F.2d 409, 412 (4th Cir.1986). Similarly, the Navy’s extensive participation, including reservation of the power to approve or disapprove design modifications, enhances the likelihood of final product conformity. Government involvement in the process also makes it more likely, though not certain, that a sharing of information will occur with respect to potential dangers in the use of the equipment. As a final matter, extensive governmental participation provides tangible evidence of the strong federal interest which justifies the creation of a federal common law defense for government contractors in the first place. III. Plaintiffs argue nonetheless that the government contractor defense does not apply because the main landing gear of decedent’s F/A-18 failed to conform to the government’s “reasonably precise specifications” as required by Boyle. There is no evidence, however, that the landing gear failed to conform to the precise quantitative specifications embodied in the totality of documents exchanged between the parties. A. Plaintiffs contest the district court’s conclusion that ultimate design specifications are most relevant to the government contractor defense. They contend that the reasonably precise specifications for the main landing gear of the F/A-18 are contained in “Detail Specification for Model F/A-18 Aircraft” (SD-565-1-4), certain incorporated provisions from the Navy aircraft manual (SD24-K Volume I-General Specification For Design and Construction of Aircraft Weapon Systems), three relevant incorporated Military Specifications (MIL-A-8860, 8863A and 8866), and Procurement Specification 74-410051. Plaintiffs allege that these documents require that the landing gear be strong enough to withstand normal landing loads without bending, that it remain locked after extension until unlocked from the cockpit, and that any failure of the landing gear not result in uncontrollable movement of the airplane. We do not dispute that the documents referenced by plaintiffs embody part of the universe of specifications to which the landing gear must conform. However, plaintiffs fail to appreciate that military hardware does not suddenly spring into being from initial design and procurement specifications, but evolves through drawings, blueprints and mockups agreed upon by the parties. See Harduvel, 878 F.2d at 1320-21; Ramey, 874 F.2d at 948 n. 4-5. The ultimate design of the product is determined not only by the original procurement and contract specifications, but also by specific, quantitative engineering analysis developed during the actual production process. Indeed, many of the documents cited by plaintiffs reflect no more than the initial, theoretical phase of the development of the F/A-18 landing gear. The general qualitative specifications contained therein were incorporated by reference into the full scale development contracts issued to MDC for the development of the F/A-18. As part of its duties under the contract, MDC used the Navy specifications to develop required structural load parameters which served as a basis for the detailed design of the aircraft. These design loads comprised five volumes of material which were submitted to the Navy. The contract also required MDC to submit detailed design drawings to the Navy for approval as the general specifications became embodied in the actual landing gear. The Navy reserved the right to reject drawings and to require revisions and modifications. These working drawings, and not simply the general qualitative specifications from the procurement stage, comprise “the reasonably precise specifications” contemplated by Boyle. Where the military procurement process involves this kind of continuous exchange between the contractor and the government, the process itself becomes persuasive evidence of product conformity to precise specifications. Here the government maintained discretion over the design of the product throughout; it did not simply turn over such discretion, and the military decisions inherent therein, to the private contractor. In contrast to the Fifth Circuit’s conclusion in Trevino v. General Dynamics Corp., 865 F.2d 1474, 1487 n. 13-14 (5th Cir.1989), that there had been inadequate review of the design drawings to make out the defense, the Navy here performed extensive review of detailed design drawings submitted by MDC. The Contract Data Requirements List, which laid out required document submissions under the contract, specifically required that Landing Gear Design Reports and Landing Gear Specifications be submitted for Navy review and approval. Moreover, Navy engineers and other personnel participated in the F/A-18 design process through periodic design review meetings including Detail Design Review meetings, Technical Coordination meetings, F/A-18 Specialty Design Reviews, Program Management Reviews, Flight Test Readiness Reviews, and Production Readiness Reviews. Such meetings, of course, bolster the underpinning of the defense, namely that the contractor should not be held liable at law for performing the government’s bidding. See Boyle, 108 S.Ct. at 2518. It is also undisputed that the Navy exercised complete discretion over suggested design changes in connection with the landing gear design. Between 1979, when F/A-18 test flights began, and 1985, the Navy expressly approved or required a substantial number of landing gear design modifications and rejected others, as evidenced by the Safety Action Record maintained by MDC. For example, in 1983 the Navy declined to implement an MDC proposal for an improved planing link that incorporated a coiled spring design. MDC believed this design would offer greater resistance to the buckling of the planing link. On the other hand, the Navy accepted a proposed modification in 1984 which incorporated a hydraulic restrictor designed to protect the planing link from bending due to excessive torque forces. (Several years later, the Navy did incorporate a coiled spring design similar to the type MDC had proposed in 1983.) Plaintiffs’ reference to the general failure of F/A-18 landing gear to withstand normal landing loads without bending or unlocking fails to take into account this significant history. Requirements such as an ability to withstand normal loads and prohibitions against operational failures represent little more than the hopes of participants that the project on which they are about to embark will turn out well. General qualitative specifications must be distinguished from the “detailed, precise and typically quantitative specifications for manufacture of a particular military product." Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 745 (11th Cir.1985). These two broad types of specifications often overlap and may even be at cross purposes-for example, design specifications for a complex back-up system may conflict with the qualitative requirements of ease of maintenance, combat effectiveness or cost containment. Id. at 745. Only the detailed, quantitative specifications-and not those calling for such vagaries as a failsafe, simple or inexpensive product-are relevant to the government contractor defense. In essence, plaintiffs' argument is that the ultimate design of the landing gear failed to produce an aircraft that performed perfectly. Plaintiffs' view would render the government contractor defense illusory. Nonconformance to precise specifications must mean more than that the design does not work in compliance with some "general admonition against an unwanted condition." Harduve4 878 F.2d at 1319 n. 3. A product involved in a design-induced accident would, as a definitional matter, always be deemed not to comply with such generalities since no performance specifications approved by the government would purposely allow a design that would result in an accident. In fact, plaintiffs describe exactly the situation in which the government contractor defense does apply: when the required ultimate military design fails to produce a "reasonably safe" product under state law. Contrary to plaintiffs' assertions, a product conforms to reasonably precise specifications if it satisfies "an intended configuration" even if it "may produce unintended and unwanted results." Id. at 1317. The evidence demonstrates that the alleged defect inhered in the unique design of the landing gear itself-as required by the Navy-and did not result from any deviation from the required military specifications. B. Plaintiffs further allege that the Navy had itself concluded that the landing gear did not conform to specifications. They rely upon a Notice of Defect issued by the Navy to MDC in November 1983, in connection with the recurring problem of bending of the planing link assembly on the main landing gear of the F/A-18. Plaintiffs’ argument fails for several reasons. First, the very purpose of the government contractor defense is to encourage active communication between suppliers of military equipment and military authorities in the development and testing of equipment. McKay v. Rockwell Int’l Corp., 704 F.2d 444, 450 (9th Cir.1983). This cooperative effort must include identification by the parties of actual and potential problems during design and production. If a mere notification of defect precluded application of the government contractor defense, the climate of candid exchange between the government and the contractor would be compromised. Second, it is undisputed that MDC addressed the problem of the bent planing links in response to the Notice of Defect. In early 1984, MDC and the Navy mutually concluded that the hydraulic system of the aircraft allowed the landing gear to rotate into stowage before the wheel stopped spinning, exposing the planing link to torque forces in excess of design specifications. In response, MDC designed a “hydraulic restrictor” to slow the rotation of the gear after takeoff and before stowage. The Navy approved the design of the hydraulic restrictor and directed that it be incorporated into all new production models, including the aircraft that Kleemann was flying at the time of the accident. On May 24, 1985, the Navy advised MDC that the Notice of Defect was formally closed. IV. In sum, we find no evidence that the landing gear deviated from the configuration which was proposed by the Navy and reduced to precise specification by the continuous back and forth exchange between the Navy and MDC. The judgment of the district court is therefore AFFIRMED. . The district court also denied a motion to dismiss filed by defendant on the grounds that the action was barred by California’s one-year statute of limitations for wrongful death claims. The court found that Maryland's three-year statute of limitations applied, and we decline to disturb its decision. . Plaintiffs in their opposition to summary judgment below appear to dispute only whether the landing gear conformed to reasonably precise specifications. However, we are persuaded by our review of the evidence that the Navy also approved those specifications. Further, there is no evidence that MDC failed to warn the Navy of dangers in the design of the landing gear that were unknown to the government. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. WELLS, Inc., v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD v. WELLS, Inc. No. 11388. Circuit Court of Appeals, Ninth Circuit June 17, 1947. Louis H. Callister, of Salt Lake City, Utah, for petitioner. Gerhard P. Van Arkel, Gen. Counsel, Morris P. Glushien, Associate Gen. Counsel, A. Norman Somers,' Asst. Gen. Counsel, and Mozart G. Ratner, Henry W. Leh-mann and Robert Todd McKinlay, Attys., N.L.R.B., all of Washington, D. C., for respondent. Before STEPHENS, HEALY, and BONE, Circuit Judges. HEALY, Circuit Judge. Two petitions are before us in this proceeding, one by the National Labor Relations Board to enforce an order, the other by Wells, Inc., the party affected, to set the order aside. The Board found an unfair practice in the discharge by Wells of a supervisory employee named Jack Benton, and it directed Benton’s reinstatement. Wells contends that on the facts as found the discharge neither did nor could amount to a violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and naturally it contests the reinstatement order. The hearing before the Board was initiated by a complaint of the International Association of Machinists (herein sometimes called the Machinists or the Union) which claimed to be the authorized bargaining representative of the employees in one of Wells’ shops. Wells operates an interstate trucking business with headquarters at Reno, Nevada, and maintains a shop there for the servicing and repair of its trucks. Benton had begun work in that shop as a mechanic in August 1942 but in April of 1943 he was promoted to the position of foreman. He had and exercised authority to hire and discharge the shop workers, a relatively small group consisting of mechanics, greasers, washers, and the like. Before becoming foreman he had joined the Machinists Union and continued to be one of its most active members. At the. time of his discharge he was union steward and trustee and openly wore his button most of the time while at work. He at various times spoke to the rank and file employees about the Machinists Union and solicited a number of them to join it. The Machinists had no bargaining agreement with Wells. The latter, however, had a contract with the International Brotherhood of Teamsters covering not only its drivers but certain employees of a repair shop which it maintained at Luning, Nevada, where it had a branch. The Teamsters objected to the recognition by Wells of the Machinists as bargaining represen tative for the greasers, washers, and others employed at Reno, claiming that these classifications “belonged” to the Teamsters. The Board found, on competent evidence that Wells anticipated a jurisdictional squabble if it recognized the Machinists as representative of its Reno shop workers; and there is evidence that Wells regarded Benton as being responsible for its Reno employees becoming members of the Machinists and asking to be represented by it. Efforts of the Machinists to organize the Reno shop and to obtain recognition from Wells came to a head in December of 1944. Authorization cards had been signed by five out of eight employees in what was stipulated at the Board hearing to be an appropriate bargaining unit, namely the group consisting of mechanics and mechanics helpers and apprentices. On December 18, 1944, a petition signed by seven of these eight employees, as well as by others in the shop, was presented to Wells asking that the Machinists Union be designated as exclusive bargaining representative. The trial examiner found, on evidence that does not seem to be contested, that on December 22 Wells refused to recognize the Machinists or to bargain with them as the representative of the appropriate unit; and the examiner concluded that the refusal violated § 8(5) of the Act. For reasons presently to be mentioned the Board declined to accept the examiner’s conclusion on that point. Benton testified without substantial contradiction that about the end of December 1944 or early in January 1945 he spoke with Wells’ superintendent, Divine, concerning his job as foreman, saying that he was paid only $25 a month more than some of the ordinary mechanics and that, unlike the latter, he received no extra compensation for his considerable overtime. Benton “wondered whether Divine could obtain a little more money” for him, or if that was not possible, he wondered if another foreman might be employed and he, Benton, given back his position as a mechanic. Divine said he thought matters could be arranged and advised Benton not to worry. At the end of January Divine told Benton that he was relieved of his duties as shop foreman, and, further, that it would not work out for Benton to become a rank and file mechanic in view of his former position as foreman. Benton remarked, “In other words, you mean that I am fired?”; to which Divine replied, “If you look at it that way, yes.” Apart from the implications of this incident, there were others from which one may infer an attitude of hostility on Wells’ part toward the organizational activities of the Machinists. The Board believed that this attitude afforded the only rational explanation for Benton’s discharge. It said: “That a discharge of an active adherent of a union under circumstances which suggest no motivation other than hostility to the union, operates as a warning to all employees of the danger attached to adherence to the union, hence generally discourages union membership, can not be denied.” It thought the fact that Benton was a supervisory employee did not operate to relieve Wells of its obligation not to engage in discriminating conduct calculated to discourage membership in the Union. The ultimate finding was that Benton’s discharge was discriminatory within the purport of § 8(3) of the Act. Wells appears to argue that it discharged Benton because, as a representative of management, his union activities compromised the neutrality of his employer and put the latter in the position of interfering with employee rights guaranteed by § 7 of the Act; hence his discharge was not only warranted but obligatory. Had this in truth been Wells’ motive and had it seasonably made its position clear to the rank and file employees the argument would be conclusive. But the Board felt, and we think justifiably, that this claim of motivation is a palpable afterthought. Benton’s activities were confessedly not assigned as a ground for his discharge at the time it occurred, nor were they mentioned as a motivating factor in Wells’ answer filed in the proceeding. Nor, under the special facts of the case, is motive for the discharge irrelevant, as Wells alternatively asserts. The prohibition of § 8(3), by its plain terms, extends to any discriminatory discharge the purpose and manifest effect of which is to discourage employee membership in a labor organization. The existence of some justifiable ground for discharge is no defense if it was not the moving cause. Cf. N.L.R.B. v. Air Associates, Inc., 2 Cir., 121 F.2d 586; N.L.R.B. v. Skinner & Kennedy Stationery Co., 8 Cir., 113 F.2d 667. Consult further, Matter of Reliance Manufacturing Co., 60 N.L.R.B. 946; Matter of Vail Manufacturing Co., 61 N.L.R.B. 181; Matter of Climax Engineering Co., 66 N.L.R.B. No. 141. As already intimated there is evidence, apart from the discharge of the foreman, supporting the cease and desist order and the collateral requirement of the posting of notices. But the propriety of the order requiring Benton’s reinstatement to his former position appears to us highly dubious, to say the most for it. A prime aim of the National Labor Relations Act was to liberate the worker from all dominance by management in the exercise of his choice of a bargaining representative. Full liberty of choice in this respect is of the essence of the rights guaranteed. The problem here is whether, in light of Foreman Benton’s active connection with the Machinists and his known history of championship of that union, his restoration to his former post of power and influence over the rank and file workers can justly be said to be a measure which will effectuate this policy. Ordinarily, to be sure, it is for the Board, with its specialized knowledge and experience in this field, to determine what steps will tend most effectually to correct the consequences of an unfair labor practice. But here the Board itself, in declining to accept the examiner’s finding that Wells’ refusal to recognize the Machinists constituted a violation of § 8(5) of the Act, has noted the incalculable nature of the foreman’s influence upon the decision of his subordinates and the impossibility of gauging its extent. It thought that Benton’s discharge served as an object lesson to all employees of the danger of adhering to the Machinists; and this view we have accepted. But the cure proposed is in the nature of an object lesson of the possible perils .of failing to adhere to the Machinists. The Board can not have it both ways. We are unimpressed by its claim that the enforced restoration of this foreman to his place of power will operate merely to erase the effect of Wells’ unfair practices. We think, rather, as already said, that it would tend to perpetuate a condition of imbalance by the injection of an opposite and equally pernicious influence. True, Wells can again discharge it.s foreman if his unionization activities are resumed, but it can do so with assurance only if they are pursued in a fashion so flagrant and pronounced as to leave nothing to" the imagination. Freedom of choice requires more than that. There are more subtle, less perceptible ways by which a supervisory employee, with authority to hire and discharge, to promote and demote, may influence choice as between competing unions, or as between union and no union. The order is modified by excluding the requirement of Benton’s reinstatement. With this modification a decree will be entered enforcing it. Altogether, 11 of tho shop employees had signed authorization cards, and apparently the 11 signed also tho petition presented on December 38. That Benton was an “employee” as defined in the Act is settled by Packard Motor Car Co. v. NLRB, 67 S.Ct. 789, but the holding in that case is of no further aid here. § 10(c). The Board observed that this foreman, in full charge of the shop with the authority to hire and discharge, actively engaged in union activities as a steward and trustee and influenced subordinates to become members of the Machinists. It said that it was “impossible to determine the extent to which Foreman Benton’s activities and solicitation were responsible for any employee’s decision to join the Union, and hence for the Union’s paper majority. Since the Union’s majority was procured with the direct and open assistance of a supervisory employee, it cannot be said to represent the free and untrammeled will of the employees and hence cannot be recognized as valid majority.” Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. JOYCE v. WYANT et al. No. 11670. United States Court of Appeals Sixth Circuit. March 23, 1953. Robert M. Waer, Grand Rapids, Mich., and Elmo P. Lee, Jr., Shreveport, La., Harrington, Waer, Cary & Servaas, and Robert M. Waer, Grand Rapids, Mich., and Charles B. Emery, Shreveport, La., on the brief, for appellant. Harry C. Kinne, Chicago, Ill., Kinne & Scovel, and Harry C. Kinne, Sr., Chicago, Ill., Amberg, Law & Buchen, R. Dale Law, and Niel A. Weathers, Jr., Grand Rapids, Mich., for appellees. Before ALLEN, McALLISTER and MILLER, Circuit Judges. MILLER, Circuit Judge.. Appellant filed this action in the district court’ to recover damages resulting frpm the failure of the appellees, assignees of the lessee under an oil lease from the appellant covering land located in.Caddo Parish, Louisiana, to. drill three wells on the leased property, The District Judge sustained the motion,of the appellees to 'dismiss the. complaint for failure .to state a cause of action, 105 F.Supp. 979, from which ruling this appeal was taken. The material provisions of the' lease which give rise to the present controversy are as follows: “Lessor in corisideration of Lessee’s obligation to drill four wells on the premises herein leased as hereinafter set forth, of the royalties hereinafter provided, and of the agreements of Lessee hereinafter coritainéd, hereby grants, leases and lets unto Lessee for the purpose of exploring, prospecting, drilling and mining for and producing oil, gas and other minerals * * , the following described land ’* * : “The term of this lease is 60 days .from date hereof and as long thereafter as Lessee complies with his obligations ■hereunder, and he produces oil, gas or other minerals in paying quantities from the leased premises. “The royalties to be paid by Lessee are: * , * * ’ “The actual consideration .for this lease is that Lessee hereby obligates himself to drill four wells on the leased premises at such locations as he might choose; * * * “Lessee shall begin actual drilling of a well, hereinafter referred to as ‘initial well’ on. the leased premises within 60 days from date hereof. * * * Following completion of the ‘initial well,’ whether producer or a dry hole, Lessee shall in succession drill * * * three other wells on the leased premises within 60-day intervals following the completion of the immediately preceding well drilled by Lessee hereunder. * * "Lessee shall have the right at any time during or after the expiration of this lease to remove all property and fixtures placed by Lessee on said land, including the right to draw and remove casing. * * * “In case of cancellation • or termination of this lease for any cause, Lessee shall have the right to retain under the terms hereof ten acres of land around each well producing such tract to be designated by Lessee in as near a square form as practicable.” The complaint set out the execution of the lease on July 6, 1950, the completion of the initial well on or about August 22, 1950, and the failure of the appellees -up to November 6, 1950, to begin the drilling of a second well and their refusal thereafter to drill the second well, on the ground that the initial well produced insufficient oil to make further operations profitable. In support of the motion to dismiss, ap-pellees contended that the lease expired by its terms following the expiration of 60 days after the completion of the first well, during which time there was no production of oil, gas or other minerals in paying quantities from the leased premises, with the result that there was neither the right nor the obligation upon their part to drill the remaining three wells. Appellant contended that there was a contract obligation on the part of the appellees to drill the remaining three wells, even though the first well proved unproductive. The trial judge upheld the contention of the appellees. For a more detailed statement of the lease provisions and the reasons of the District Judge for sustaining the motion, see Joyce v. Wy-ant, D.C., 105 F.Supp. 979. It appears to be the well settled rule in oil and gas leases that a lease containing a definite primary term, with the provision that the lease will terminate at the end of such term unless the lessee or his assignee performs some additional act provided by the lease, such as the payment of money or additional drilling, does not place a binding duty upon the lessee to do anything. Such a lease is usually described as an “unless” lease. The “unless” clause is regarded as a limitation on the lessee”s estate or the period of the grant.. Unless the lessee performs the additional act, which he is not obligated to perform, the lease automatically terminates at the expiration of the primary grant. Such a lease is distinguished from the so-called “or” lease where the lessee is obligated either to drill a well or pay rental, and can be held in default upon failure to do so. Gloyd v. Midwest Refining Co., 10 Cir., 62 F.2d 483, 485; McCrabb v. Moulton, 8 Cir., 124 F.2d 689, 691; Le Rosen v. North Central Texas Oil Co., 169 La. 973, 126 So. 442; See Annotation, 67 A.L.R. 223-230. The lease under consideration in this case provides for a definite primary term of 60 days, without use of either the “or” provision or the “unless” provision with respect to an extension thereafter. Instead it uses the phrase “and as long thereafter as Lessee” performs certain acts. The District Judge construed it as an “unless” lease. Appellant contends that it is not an “unless”' lease, relying chiefly on the fact that the term “unless” is not used. The contention has but little merit. The District Judge recognized that it was not the typical “unless” lease, in that the term “unless” was not used, but held that it fell within that classification in that the legal effect of the lessee’s failure to drill within the prescribed time was the same as under the usual form of an “unless” lease. Logan v. Tholl Oil Co., 189 La. 645, 180 So. 473; Smith v. Sun Oil Co., 172 La. 655, 135 So. 15; Talley v. Lawhon, 150 La. 25, 90 So. 427. In Parten v. Webb, 197 La. 197, 1 So.2d 76, 77, the lease was for a term of five years and as long thereafter as oil or gas be produced from the land. The Court said: “After the primary term of a mineral lease has expired and there is no production, or not enough thereon to keep it alive, the lease simply lapses according to its own terms.”’ The parties agree that the law of Louisiana is the applicable law. Cockburn v. O’Meara, 5 Cir., 141 F.2d 779; General Talking Pictures Corp. v. Pine Tree Amusement Co. Inc., 180 La. 529, 156 So. 812. Appellant contends, however, that the ha-bendum or term clause, which was given strong consideration by the District Judge, relying partly upon J. J. Fagan & Co. v. Burns, 247 Mich. 674, 679, 226 N.W. 653, 67 A.L.R. 522, is in conflict with other provisions of the lease which state that the actual consideration for the lease is the lessee’s obligation to drill four wells and which require the other three wells to be drilled even though the initial well proves to be a dry hole. Appellees attempt to reconcile the apparent inconsistency: If such' an inconsistency exists it results in requiring a construction of the lease in the light of all of its provisions. The logical way to have provided for the effect now contended for by appellant would have been to have made the primary term of sufficient length to cover the sixty-day intervals between the successive drillings. The relatively short primary term of 60 days, during which only one well was required to be drilled, the provisions pertaining to termination of the lease without any provision for liability on the part of the lessee for failure to drill the remaining wells, the right in the lessee to remove all property placed by him on the land, including the removal of casing, at any time during the lease, and his right to retain ten acres of land around a producing well in the event of the cancellation of the lease “for any cause” lead us to the same conclusion as was reached by the District Judge. As pointed out in Logan v. Tholl Oil Co., supra [189 La. 645, 180 So. 475], where the lease contained an “as long as”, clause, the main consideration for such a lease is the development of the land for oil, gas and the obligation on the part of the lessee is either to develop with reasonable diligence or give up the lease. The District Judge based his ruling partly upon the case of Fogle v. Feasel, 201 La. 899, 10 So.2d 695, where the factual situation was very similar to the present case. Appellant contends that the ruling is more closely controlled by the case of Fite v. Miller, 192 La. 229, 187 So. 650, 122 A.L.R. 446, and 196 La. 876, 200 So. 285. While the ruling in Fogle v. Feasel, supra, was based upon two separate grounds, one of which is not applicable to the present case, it is nevertheless also an authority on the other point, which is the point in issue here. Union Pacific R. Co. v. Mason City Co., 199 U.S. 160, 166, 26 S.Ct. 19, 50 L.Ed. 134. We recognize that there were certain forfeiture provisions in the lease in that case, upon which the Court relied, which are not present in this case. That factual difference does not invalidate the rule which the Court relied upon in reaching its conclusion, namely, that the various provisions of the lease, considered in their entirety, indicated that the only penalty contemplated by the parties for the violation of any of the provisions of the lease was that in. such event the lease was to-become null and void. In our opinion, the-provisions in the present lease, considered in their entirety, do not indicate an intention to hold the lessee liable for damages upon failure to drill. In the case of Fite v. Miller, supra, the principle question before the Court was one of damages, not a construction of the lease. As shown by the opinions in that case, the Court referred several times to the unconditional obligation on the part of the lessee to drill the well which he refused to drill. No question seems to have been raised about the existence of such an obligation under the terms o'f the lease. The opinion's do not set out the literal provisions of the lease, but appellant has undertaken to supply us with the information that the lease contained provisions as to its duration which were similar to the provisions of the lease in the present case, in that it was a lease-for a term of five years “and as long thereafter as oil, gas or other mineral is produced. * * * ” However, we gather from the opinion, 'although not definitely stated, that the obligation to drill came into existence during the primary term of five years, making it unnecessary for the Court to construe or to give any effect to the “as long thereafter” provision. In any event, it is not discussed. In the present case it is the legal effect of such a phrase that determines whether there was an obligation to drill on the part of the lessee after the expiration of the primary term, which is the real question involved. We are of the opinion that the District Judge was correct in considering the ruling in Fogle v. Feasel, supra, more applicable to the present case than the ruling in Fite v. Miller, supra. The judgment is affirmed. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_appel2_7_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Robert C. WENZEL, James F. Moulthrop and Donald Wilson, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, and John Hoh, Kenneth Carroll, David Greenhut, Dominic Accetta, Angelo Ferraro, and A.J. Grau, Former Trustees of the Brewery Workers Pension Fund, Appellees. NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, William H. Mosley, Sr., Administrator, John Delguidice, Wayne W. Woodhead, and Anthony J. Dunadee, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, and John Hoh, Kenneth Carroll, David Greenhut, Dominic Accetta, Angelo Ferraro, and A.J. Grau, Former Trustees of the Brewery Workers Pension Fund, Appellees. NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, William H. Mosley, Sr., Administrator, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, and John Hoh, Kenneth Carroll, David Greenhut, Dominic Accetta, Angelo Ferraro, and A.J. Grau, Former Trustees of the Brewery Workers Pension Fund, Appellees. Nos. 1238-1240, Dockets 83-4007, 83-4009 and 83-4011. United States Court of Appeals, Second Circuit. Argued May 16, 1983. Decided May 20, 1983. Robert D. Whoriskey, New York City (Robert S. Lipton, Sharon A. Lundstrom, Curtis, Mallet-Prevost, Colt & Mosle, Andrew J. Maloney, Lawrence V. Kelly, Maloney, Viviani, Higgins & Kelly, New York City, of counsel), for appellants. Michael J. Roach, Atty., Tax Div., Dept, of Justice, Washington, D.C. (Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup and Richard Farber, Attys., Tax Div., Dept, of Justice, Washington, D.C., of counsel), for appellee I.R.S. Bettina B. Plevan, New York City (Edward Silver, I. Philip Sipser, Elizabeth A. Alcorn, Claude I. Hersh, Robert C. Finkel, Proskauer, Rose, Goetz & Mendelsohn, Sipser, Weinstock, Harper, Dorn & Liebowitz, New York City, of counsel), for appellees Trustees of the Brewery Workers Pension Fund. Before MANSFIELD, MESKILL and KEARSE, Circuit Judges. PER CURIAM: Appellants Wenzel, Moulthrop, and Wilson (No. 83-4007) petitioned the Tax Court for a declaratory judgment revoking as invalid a September 28, 1976 determination letter of the Buffalo District Director of the Internal Revenue Service to the effect that a 1973 merger of the Brewery Workers Pension Fund (“Brewery Workers Fund”) into the New York State Teamsters Conference Pension and Retirement Fund (“Teamsters Fund”) did not affect the qualified and tax exempt status of the merged plan and that the merger of the two funds satisfied the requirements of the Employee Retirement Income Security Act. Appellants also sought a declaration, inter alia, that a “partial termination” of the Brewery Workers Fund occurred within the meaning of 26 U.S.C. § 411(d)(3) prior to its merger with the Teamsters Fund, resulting in a “spin-off” of the terminated portion of the Brewery Workers Fund and relieving the Teamsters Fund of any unfunded liabilities for the terminated portion. Appellants Mosley, et a1. (No. 83-4009) petitioned the Tax Court for related relief, including a declaration that an October 25, 1978 letter from the Brooklyn District Director’s office to the Teamsters Fund requesting the latter to give notice to participants in that fund of the September 28, 1976 determination was also invalid. In the third related case, No. 83-4011, appellant Mosley petitioned the Tax Court for, inter alia, a declaration that a December 26, 1978 letter from the Brooklyn District Director, IRS, advising the Teamsters Fund of that fund’s failure to notify all “interested parties” as required by Treas. Regs., 26 C.F.R. § 1.7476-l(b), was invalid. The December 26, 1978 letter was the culmination of correspondence between the Teamsters Fund and the District Director with reference to a September 11, 1978 request by the Teamsters Fund for a determination that a partial termination of the Brewery Workers Fund had occurred prior to the effective date of the merger of the funds and no later than September 30,1976. The Tax Court held that the relief sought by appellants was “patently beyond the scope of its jurisdiction.” We agree, substantially for the reasons stated by the Tax Court. The Tax Court’s jurisdiction is narrowly limited to “a case of actual controversy involving — (1) a determination by the Secretary with respect to the initial qualification or continuing qualification of a retirement plan ... or (2) a failure by the Secretary to make a determination with respect to — (A) such initial qualification, or (B) such continuing qualification if the controversy arises from a plan amendment or plan termination .... ” I.R.C. § 7476(a). Accordingly, the Tax Court is restricted to deciding “whether the Commissioner, in making his determination, properly applied the law to the facts presented to him in the request for such determination.” Thompson v. Commissioner, 71 T.C. 32, 36-37 (1978). In short, the Tax Court may only determine “whether a plan is, or is not, a qualified plan.” S.Rep. No. 383,93rd Cong., 2d Sess. 3, reprinted in 1974 U.S.Code Cong. & Ad.News 4639, 4890, 4997. The Tax Court will not engage in de novo factual review or consider issues not raised before the Commissioner. See Jones v. Commissioner, 41 T.C.M. (CCH) ¶ 37,405 at 377 (1980), aff’d, 676 F.2d 710 (9th Cir.1982); Tamko Asphalt Products, Inc. v. Commissioner, 658 F.2d 735, 738-39 (10th Cir.1981). Nor does the Tax Court have any power under § 7476 to review claims of procedural irregularity on the part of the Commissioner in making or failing to make a “determination” with respect to the continuing qualification of a retirement plan under the Internal Revenue Code, provided statutory notice requirements have been satisfied. Hawes v. Commissioner, 73 T.C. 916 (1980). Applying these basic jurisdictional limitations here, appellants did not present to the Tax Court an actual controversy with respect to a determination by the Commissioner regarding the continuing qualification of the retirement plans involved or a failure to make such a determination. See Tamko Asphalt Products, supra, 658 F.2d at 738. Appellants did not ask that the September 28, 1976 determination, as reaffirmed in June 1979, be reversed and that a determination be made that the merged plan be disqualified, probably because they understandably did not wish to jeopardize the tax exempt status of the Teamsters Fund. Instead appellants by letter dated September 11, 1978 requested the Commissioner to determine that there had been a “partial termination” of the Brewery Workers Fund within the meaning of § 411(d)(3) of the Internal Revenue Code of 1954 and § 1.411(d)-2(b), Income Tax Regs. However, the Commissioner, because of the difference of opinion between himself and the Teamsters Fund as to whether notice of this request was required to be given to Teamsters Fund participants, never resolved this partial termination question, which is a factual issue to be “decided in the first instance by the Commissioner.” See 26 C.F.R. § 1.411(d)-2(b); Jones v. Commissioner, supra, ¶ 37,405 at 377-78; Tamko, supra, 658 F.2d at 738; Thompson v. Commissioner, supra, 71 T.C. at 37. Thus far the Commissioner has by his September 28, 1976 determination passed only “on the form of the plan” and since he thereafter requested the Teamsters Fund, in accordance with the 1978 Technical Advice Memorandum, to remedy the notice deficiency, no cognizable claim with respect to his 1976 determination has been presented to the Tax Court. Appellant Mosley’s, petition based on the Commissioner’s December 26, 1978 letter (No. 83-4011) likewise failed to present any justiciable issue relating to a determination of the qualification of a retirement plan. Thus, in the absence of any case or controversy falling within § 7476, the Tax Court lacks subject matter jurisdiction and we are forced to affirm. However, we cannot let these appeals pass without noting the enormous delay — almost seven years since the September 28, 1976 determination — and waste of administrative and judicial resources that appear to have been attributable in large measure to a procedural morass within the Commissioner’s administrative framework. Although this delay also may have been caused in large part by the tactics of the Teamsters Fund in using these administrative procedures, no sound reason has been advanced for the Commissioner’s taking two years to issue Technical Advice (October 25,1978) to the effect that notice of the March 8, 1976 request for a determination should have been given to the Teamsters Fund. Accordingly we urge that in the event of further proceedings the Commissioner and the parties, in the interest of avoiding further loss of public confidence and esteem, give top priority to a prompt determination of the issue of whether there was a partial termination of the Brewery Workers Fund. The orders of the Tax Court are affirmed. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. PUBLICKER INDUSTRIES, Inc. v. TUGBOAT NEPTUNE CO. et al. No. 9679. United States Court of Appeals Third Circuit. Argued Nov. 15, 1948. Decided Dec. 1, 1948. Otto Kraus, Jr., of Philadelphia, Pa. (Howard T. Long and Howard M. Long, both of Philadelphia, Pa., on the brief), for appellants. S. B. Fortenbaugh, Jr., of Philadelphia, Pa. (Benjamin F. Stahl, Jr., and Clark, Brown, McCown, Fortenbaugh & Young, all of Philadelphia, Pa., on the brief), for appellee. Before MARIS, GOODRICH and O’CONNELL, Circuit Judges. MARIS, Circuit Judge. This is an appeal by Tugboat Neptune Company and Tugboat Triton Company, the owners of the tugboats Neptune and Triton respectively, from a judgment of the United States District Court for the Eastern District of Pennsylvania awarding damages against them and in favor of Pu-b.licker Industries, Inc., the owner of Pier 103 South Wharves in Philadelphia for injuries to the pier which resulted from the undocking of .the Steam-ship William J. Worth. The case has been here before and the facts are stated in our previous opinion. Publicker Commercial Alcohol Co. v. Independent Towing Co., 1948, 165 F.2d 1002. The district court had originally entered judgment in favor of the plaintiff against American-Hawaiian Steamship Company, the agent for the United States as owner of the William J. Worth, and had dismissed the complaint as to the two tugboat companies. We reversed the judgment as to. American-Iiawaiian Steamship Company and vacated the judgments of dismissal against the two tugboat companies. Our mandate directed that the district court redetermine the liability of these two companies in accordance with the law of Pennsylvania, the action being a civil one brought under the diversity jurisdiction. Following the receipt of our mandate the district court held a further hearing. The court found a-s a fact that the capta-ins of the tugboats Neptune and Tri-ton were aware of the excessive draft of the Worth, the depth of water in the slip adjacent to Pier 98, the fact that there was a bar or -hump in the center thereof and the condition of the tide and the wind. The court further found that the two captains realized the prospective difficulty in the moving of the vessel in the face of such conditions but undertook to accomplish the operation in spite of the known risk although each tugboat had radio communication facilities which the captains could have used to request the assistance of additional tugs. The court also found that Captain Marvel of the Neptune went on board the Worth to act as the undocking pilot and that, except for the original casting off, Captain Marvel gave all orders during the undocking operation and was in general charge of that operation. Upon the facts which it found the -court concluded as a matter of law that the-damage to Pier 103 was caused by the fault and negligence of the two tugboat companies in that their agents, the captains of the tugboats, did not secure additional towing services required to move the Worth safely from its dock but attempted to undock the vessel with inadequate towing facilities under circumstances which led them to believe that such undocking would be difficult and hazardous. The judgment in favor of the plaintiff and again-st the defendant tugboat companies, which is the subject of this appeal, was thereupon entered by the court. The appellants contend that the court erred in finding the captains of the tugboats guilty of negligence and that in any event the only negligence was that of Captain Marvel of the Neptune in the way in which he directed the undocking operation from the bridge of the Worth and that since during -this period he must be regarded as the employee of the Worth and not of the tugboat companies the latter should not be held liable for hi-s acts. We find both contentions to be wholly without merit. As to the first there is ample evidence to -support the finding of the district court that before they started the captains of the two -tugboats were aware of the hazards of the operation which they were about to undertake and of the inadequacy of their tugboats to accomplish it with safety and that nevertheless they proceeded to undertake to do what they knew could not be done with -safety. Both Captain Marvel of the Neptune and Captain Cooper of -the Triton were thus rightly found to have been guilty of negligence in proceeding with the undocking operation 'before ever the former boarded the Worth and undertook to direct that operation. This follows both under the law of Pennsylvania and the admiralty law. Our conclusion as 'to the tugboat companies’ negligence, through their captains, prior to the commencement of the undocking operation is enough to justify the judgment against them regardless oí the merits of their second point which relates to Captain Marvel’s alleged negligence in conducting that operation. Nonetheless we have considered the latter and find it also to be without merit. The appellants’ contention is that Captain Marvel was loaned by the Tugboat Neptune Company to the Worth during the time that he was directing the undocking operation from the bridge of the latter vessel and accordingly became during that time the emplbyee of that vessel and its ownSr. Asserting this to have been the fact the appellants contend that under the law of Pennsylvania the Tugboat Neptune Company during that time was not responsible for the acts of its captain thus loaned to the United States, the owner of the Worth, and that his negligence during the period in question was accordingly attributable only to the Worth and its owner. We do not question the rule of Pennsylvania law which the appellants invoke with respect to the non-liability of an employer for negligent acts of his employee committed while the latter has been loaned to another employer but we find the rule not to be applicable here. For in this case the court was justified by the evidence in finding, as it did, that Captain Marvel of the Neptune directed the undocking operation, giving all the orders involved except •for the original casting off of the Worth, and that he and not 'Captain Ryder of the Worth was in general charge of the undocking operation. It thus appears that Captain Marvel was not loaned by the Tugboat Neptune Company to the Worth and did not come under authority of Captain Ryder of that vessel or become its employee for the time. On the contrary it is settled that under the circumstances present here the relation of the two tugboat companies to the Worth and its owner was that of independent contractors. The appellants, however, call attention to a towage agreement which subsisted at the time between the United States, the owner of the Worth, and Independent Towing Company, a corporation.associated with the two tugboat companies by virtue of the fact that the entire capital stock of all three •corporations was owned by a common parent company. The Independent Towing Company appears to have acted as agent to secure employment for the tugboats of the two tugboat companies and its towage contract with the United States contained the standard form of pilotage clause, as follows: “Whenever the Master or other officer of any tug or any licensed pilot goes on board a vessel to assist her. movement or handling, he becomes and continues to be solely the servant of said vessel and her owners in respect of all acts done by him and all orders given by him to any tugs engaged or to said vessel or otherwise in., the movement or handling of said vessel; and none of the tugs or their owners, agents or charterers shall be responsible or liable for any claims or any damages caused by or resulting from such acts or orders.” The appellants assert that by virtue of this pilotage clause they must be absolved from all liability for the negligent acts of Captain Marvel committed while he was on board the Worth. We cannot agree. For even if we assume that the tugboat companies were entitled to the benefit of the pilotage clause in the contract between their agent and the United States the fact remains that the clause is not binding upon the plaintiff in this case who was not a party to the towage contract. It has been so held in the admiralty law. Since the matter is one involving the construction and effect of a maritime contract the courts of Pennsylvania would adopt and apply the maritime law with respect to it even though the tort here sued on is not a maritime tort. Accordingly, while it was proper for the court to consider the pilotage clause in determining the actual fact as to whether Captain Marvel was in control of the undocking operation or was acting under the orders of Captain Ryder, the clause was not conclusive upon that point and it was, therefore, not error for the court from the other evidence in the case to find the actual fact to be that Captain Marvel acted throughout as employee and agent of the tugboat companies. The judgment of the district court will be affirmed. Hays v. Paul, 1866, 51 Pa. 134, 142, 88 Am.Dec. 569. The Syracuse, 1870, 12 Wall. 167, 79 U.S. 167, 20 L.Ed. 382; The Margaret, 1876, 94 U.S. 494, 24 L.Ed. 146; Vessel Owners’ Towing Co. v. Wilson, 7 Cir., 1894, 63 F. 626; American S. African Line v. Sheridan & Co., D.C.E.D.Pa. 1935, 1930 A.M.C. 287. The district court did not find Captain Marvel negligent in his direction of the operation once it had begun. On the contrary Captain Ryder of the 'Worth testified that, he approved Captain Marvel’s orders given on the bridge of the Worth find that if he had not approved them he could have rescinded them and taken the ship himself. Sturgis v. Boyer, 1860, 24 How. 110, 65 U.S. 110, 16 L.Ed. 591; The Dorset, 4 Cir., 1919, 260 F. 82; Calzavaro v. Planet S. S. Corporation, 4 Cir., 1929, 31 F.2d 885; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 1933, 261 N.Y. 455, 185 N.E. 698. The Niels R. Finsen, D.C.S.D.N.Y. 1931, 52 F.2d .795; Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, 1933, 261 N.Y. 455, 185 N.E. 698. Knapp, Stout & Company v. McCaffrey, 1900, 177 U.S. 638, 643, 20 S.Ct. 824, 44 L.Ed. 921; Grant Smith-Porter Co. v. Rohde, 1922, 257 U.S. 469, 476, 42 S.Ct. 157, 66 L.Ed. 321, 25 A.L.R. 1008; Moran Towing & Transportation Co. v. Navigazione Libera Triestina, S. A., 2 Cir., 1937, 92 F.2d 37, 38. Zubik v. Bethlehem Steel Co., 1941, 144 Pa.Super. 13, 18 A.2d 441. Cleveland Terminal & Valley R. v. Cleveland Steamship Co., 1908, 208 U.S. 316, 28 S.Ct. 414, 52 L.Ed. 508, 13 Ann. Cas. 1215. 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_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. SALEEBY v. UNITED STATES. Circuit Court of Appeals, Fourth Circuit. September 24, 1927. No. 2616. i. Criminal law @=>586, 1151 — Ruling on continuance is discretionary and not reviewabie except for abuse of discretion. Action of trial court on motion for continuance is purely matter of discretion and not reviewable except for abuse of discretion. 2. Bankruptcy @=>494 — Indictment against bankrupt for concealment of assets as supplemented by bill of particulars held sufficiently specific (Bankruptcy Act [I I USCA § 52]). Indictment against bankrupt for concealment of assets under Bankruptcy Act, § 29b (11 USCA § 52), as supplemented by bill of particulars furnished, held sufficiently specific. 3. Bankruptcy @=>495 — Evidence held to sustain conviction of bankrupt for concealment of assets (Bankruptcy Act [I I USCA § 52]). Judgment of conviction against bankrupt for fraudulent concealment of assets, under Bankruptcy Act, § 29b (11 USCA § 52), held sustained by the evidence. In Error to the District Court of the United States for the Eastern District of South Carolina, at Florence; Ernest F. Cochran, Judge. Thad Saleeby was convicted of concealment of assets under Bankruptcy Act, § 29b, and he brings error. Affirmed. P. H. Arrowsmith, of Florence, S. C. (Spears & Want, of Darlington, S. C., on the brief), for plaintiff in error. J. D. E. Meyer, U. S. Atty., of Charleston, S. C. (Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C., on the brief), for the United States. Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge. NORTHCOTT, Circuit Judge. This is a writ of error to a judgment of the District Court of the United States for the Eastern District of South Carolina, at Florence, Thad ■ Saleeby, plaintiff in error here, and defendant below, who will, for the purpose of convenience, be referred to here as the defendant, was a merchant conducting a general merchandise store at Florence, S. C. He had been conducting such business for some time prior to January 1, 1925, on which date he made a statement to the Bradstreet Company, showing his not worth to be more than $50,-000, and on February 19, 1925, he made a statement to R. G. Dun & Co., as of January 1, 1925, showing his total net worth in and out of business to bo more than $47,000. Again on July 8, 1925, the defendant made a statement to A. M. Robinson Company, showing his net worth to be $49,229. On January 1, 1925, the defendant stated that he owed altogether for merchandise $945, and to banks, $1,600. Up to July, 1925, the defendant had only 100 creditors. During the last six months of the year 1925, the defendant purchased merchandise amounting to $44,000, on which purchases he paid only the sum of $3,117.23. On January 2,-1926, Thad Saleeby, individually and as a member and copartner of Thad Saleeby Company, was adjudged a bankrupt by the United States District Court for the Eastern District of South Carolina. The schedules filed and sworn to by defendant showed liabilities to be more than $43,000, due to more than 250 unsecured creditors, with assets listed amounting to the sum of about $26,000, upon which assets, however, the trustee realized only $2,910. ' On May 3, 1926, Thad Saleeby was indicted in the District Court of the United States for the Eastern District of South Carolina, at Florence, for the concealment of assets, under section 29b of the Bankruptcy Act 1898 (11 USCA § 52), and on December 7, 1926, the trial was begun, resulting in a verdict of guilty and a sentence to imprisonment, from which judgment of the court this writ was sued out. No evidence was offered by the defendant. It is first urged on behalf of the defendant that the trial court erred in refusing the motion for continuance; said motion being based upon the fact that one of the government’s agents, supposed to be investigating the ease, had stated to an attorney for the defendant, that in his opinion there was nothing in the case, and that it would not be tried. This agent ceased his connection with the case some months before the calling of the ease for trial on December 7, and a week before beginning the term, at which the trial was held, the defendant’s counsel had written to the United States attorney and had been informed that the government expected to try the ease. The indictment had been found in May, 1926, more than seven months prior to the trial, and there had been an intervening term of court. The books from which the bill of particulars was made up, and concerning which the chief witness for the prosecution testified, were the books of the defendant, kept by him with relation to a business conducted by him, of which he had full knowledge ; and we fail to see where there was any hardship in putting him on trial on December 7. This is especially true, in view of the action of the trial court in offering the defendant two days’ additional delay for the purpose of allowing further time for the preparation of his case, which offer of the trial court was refused. Neither the defend"ant nor his counsel were in any way misled by anybody in authority in the case; on the contrary, it is apparent from the record that 'the defendant had every opportunity to prepare himself for the trial. This court, in-the ease of the Pocahontas Distilling Co. v. United States, 218 F. 782, has stated the general rule with respect to motions for continuance to be that such motions are “addressed, to the discretion of the trial court,” and that their denial “constitutes ordinarily no ground for the reversal of judgment.” “That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question.” See Isaacs v. United States, 159 U. S. 487, 16 S. Ct. 51, 40 L. Ed. 229, and authorities there cited. There was no abuse of discretion in the ao> tion of the trial judge in refusing to grant the motion to continue. The second point raised is to the sufficiency of the indictment. This question was not raised by demurrer until the ease was actually called for trial. The practice of delaying motions of this character until the last minute is not to be encouraged, and this motion, together with motion for bill of particulars, should have been made at' an earlier stage of the proceedings. Upon examination, we are of the opinion that the indictment is sufficient. It states all the necessary. ingredients of the offense' charged, and, together with the bill of particulars furnished by the government, was amply sufficient to advise the defendant of all matters necessary for his defense, and to safeguard him from any further prosecution, based on the same transaction. The indictment charged that the defendant- “knowingly and fraudulently did conceal, while a bankrupt, as aforesaid, from his said trustee as aforesaid, certain dry goods, clothings, shoes, trade fixtures, and other goods, wares, merchandise, and chattels, the exact nature, kind, quantity, and value thereof being to the grand jurors aforesaid unknown, together with moneys and divers credits and accounts belonging to the said bankrupt estate, a more particular description of all of the same being to the grand jurors aforesaid unknown.” In the ease of Keslinsky v. United States (C. C. A.) 12 F.(2d) 767, a similar question was raised, and the indictment in that case contained the following language : “ * * * Conceal from J. H. Edwards, . who was duly elected and qualified as said trustee of said bankrupt estate, on May 1, 1923, certain goods, wares, moneys, merchandise, shoes, and personal property belonging to said bankrupt estate, a more particular description of which is to your grand jurors otherwise unknown.” There the court said: “The count, in connection with the mentioned letter, which may he regarded as serving the purpose of a bill of particulars, so far informed the aceused what he was charged with having concealed from said trustee as to enable him to prepare his defense and to use the judgment under the indictment in bar of a subsequent prosecution based on the same transaction.” In this case the bill of particulars furnished by the government was much more full and complete than the letter mentioned in the Keslinsky Case. “An indictment charging that defendant knowingly, fraudulently, and feloniously, while he was a bankrupt, concealed from the trustee a large portion of his property belonging to the bankrupt estate, said property consisting of money and merchandise to the value of $30,000.00, alleges in plain and unambiguous terms all the essential elements of the offense, and is sufficient.” Greenbaum v. United States (C. C. A.) 280 F. 474. In Fisher v. United States (C. C. A.) 2 F.(2d) 845, this court said: “Objection was also made in argument that the indictment was fatally defective in that it charged a conspiracy to sell, barter, transport, deliver, furnish, and possess intoxicating liquors without specifying which one of these particular acts the defendants conspired to commit. The record of the trial shows that the defendants fully understood the time, place, and circumstances of the offense alleged against them, and were in no way prejudiced by any defect in the indictment. “In Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 952 (39 L. Ed. 1033), * * * the court says: * * * ‘Nor, if made by demurrer or by motion and overruled, would it avail on error unless it appeared that the substantial rights of the aceused were prejudiced by the refusal of the court to require a more restricted or specific statement of the particular mode in which the offense charged, was committed. Rev. Stat. § 1025 (Comp. Stat. § 1691 [18 USCA § 556]). There is no ground whatever to suppose that the accused was taken by surpiise in the progress of the trial, or that he was in doubt as to what was the precise offense with which he was charged.’ ” A motion was made for a bill of particulars, but this motion also was not made until the day the case was called for trial. It is not fair to the prosecution to wait until the last moment to make this motion, and it came too late. The learned trial court so stated, but suggested that the government should furnish such bill of particulars as it could prepare on short notice. This was done, and the bill of particulars included a statement made from the record of the bankrupcty case, and from the defendant’s hooks, showing as we think with sufficient accuracy the basis upon which the government expected to found its case, and notifying the defendant what he would be expected to meet. The indictment, supported as it was by the bill of particulars, was sufficient, and there was no error in overruling the demurrer. If the indictment fails to advise defendant of matters necessary for defense, such necessary matters may be supplied by bill of particulars. Myers v. United States (C. C. A.) 15 F.(2d) 977. Tbe other points raised by the defendant refer to the action of the trial court in refusing to direct a verdict for the defendant and in refusing a motion in arrest of judgment (assignment of errors 2 and 3). There was evidence to the effect that the defendant, some time prior to his being adjudicated bankrupt, transferred real estate to his wife; the transaction purporting to show a consideration of $4,000, when in fact there was no real consideration. Cheeks were traded to cover up the transaction. Three police officers of the city of Florence testified to seeing goods being packed in the store and hauled away from the back door by the defendant late at night, just before the bankruptcy proceeding. There was evidence of numerous checks having been given to persons of the same name as the defendant, Saleehy, and no satisfactory explanation given as to why these payments were made. None of the persons to whom the cheeks were payable were brought as witnesses. There was a large increase in the amount of goods purchased by the defendant during the last six months he was in business, and in less than a year the number of his creditors increased from about 100 to over 250, with only insignificant payments made on aceount of his later purchases. Defendant’s expenses increased entirely out of proportion to business done during the last months he conducted his business, and he withdrew large sums personally. In addition to all this, there was evidence showing that a statement of his receipts and disbursements, after giving credit for every possible item in bis favor and stating the account in the most favorable light for the defendant, showed a large discrepancy in the amount of his assets that was entirely unaccounted for. There was, therefore, ample evidence on which to allow the case to go to the jury. Frieden et al. v. United States (C. C. A. 4th Circuit) 5 F.(2d) 556. The charge of the learned trial judge was admittedly fair and impartial, and as to it no exceptions were taken. There was no error, and the judgment of the trial 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_othadmis	B	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". UNITED STATES of America, Plaintiff-Appellee, v. Robert Ross McCALEB and Brenda Page, Defendants-Appellants. Nos. 76-2060, 76-2061. United States Court of Appeals, Sixth Circuit. Argued Dec. 15, 1976. Decided April 11, 1977. Rehearing and Rehearing En Banc Denied June 2,1977. Martin S. Baum, Detroit, Mich. (Court appointed-CJA), for defendant-appellant in No. 76-2060. Renee S. Siegan, F. Randall Karfonta, Detroit, Mich., for defendant-appellant in No. 76-2061. Philip Van Dam, U. S. Atty., Christopher A. Andreoff, Detroit, Mich., for plaintiffappellee. Before WEICK, PECK and ENGEL, Circuit Judges. PECK, Circuit Judge. These defendants appeal their convictions for possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). McCaleb was first found guilty by a judge sitting without a jury. Page was convicted after a jury trial. Pri- or to the trials, the district judge conducted an evidentiary hearing on the defendants’ motions to suppress the evidence and a separate evidentiary hearing in order to develop more fully the facts underlying the Drug Enforcement Administration’s (DEA) efforts to curtail narcotics traffic at the Detroit Metropolitan Airport, since these efforts were highly relevant to defendants’ motions to suppress. The facts disclosed at those hearings and the subsequent trials are as follows: On October 28,1975, DEA agents observed two men and one woman, later identified as appellant McCaleb, one Larry Burnell White (his motion for directed verdict of acquittal was granted at trial), and appellant Page, arriving at the Detroit Airport on an American Airlines non-stop flight from Los Angeles. Page was carrying a shoulder bag, the others carried no luggage. The DEA agents testified that they recalled seeing Page and one of the men board the plane for Los Angeles the evening before, wearing the same clothes. The agents followed the three to the baggage claim area, observing that the trio did not converse and that Page and McCaleb appeared nervous, while White did not. McCaleb claimed one bag. As the three proceeded to the parking lot, they were stopped by the agents, who identified themselves and asked them their names and for some identification. All three detainees produced driver’s licenses corresponding to the names given, McCaleb, White and Page. Agents then observed McCaleb’s bag was tagged with the name D. Robertson and asked to see their flight coupons. McCaleb produced three tickets which showed the names Mr. and Mrs. Robertson and Mr. Johnson. Upon questioning by one of the agents, Page said she was not married and had been in Los Angeles for one week. The three persons were then escorted to a small office in the airport by three DEA agents and were advised of their Miranda rights. McCaleb admitted that the suitcase was his and Agent Markonni told McCaleb he wanted to search the bag with McCaleb’s consent, and that if McCaleb refused consent, the three would be detained while he (Markonni) secured a search warrant. McCaleb hesitated, then asked Page for the key, which he took and unlocked the suitcase. Agent Markonni then opened the suitcase and seized what looked like and later proved to be heroin and three flight coupons in the names of Mr. and Mrs. F. Washington and J. Smith for the evening flight to Los Angeles the preceding day. After this search and seizure, Page, McCaleb and White were advised that they were under arrest. At the conclusion of the evidentiary hearings, the district judge determined that: (1) the DEA’s use of a so-called “drug courier profile” does not, without “more indicia of criminal activity” constitute probable cause to arrest; (2) the fact that appellants met certain aspects of the “courier profile” gave rise to a “founded suspicion” and a valid investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) appellants gave a valid, voluntary consent to search. The “drug courier profile” is a rather loosely formulated list of characteristics used by Detroit DEA agents to indicate “suspicious” persons. These characteristics include: (1) the use of small denomination currency for ticket purchases; (2) travel to and from major drug import centers, especially for short periods of time; (3) the absence of luggage or use of empty suitcases; (4) nervousness, and; (5) use of an alias. DEA agents testified that the presence of a number of these characteristics suggests that the person observed may be carrying contraband drugs. During the time period of the instant arrests, this profile was not written down, nor was it made clear to agents exactly how many or what combination of the characteristics needed to be present in order to justify an investigative stop or an arrest. In this case, DEA agents observed three persons, two of whom were nervous, returning on a non-stop flight from Los Angeles after a short trip, and having only one suitcase among them. The government contended in the district court that these profile characteristics gave the DEA agents probable cause to arrest appellants or at least “reasonable suspicion” sufficient to justify a Terry stop. Police officers have probable cause to make an arrest when “at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [a person] has committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Prince, 548 F.2d 164 (6th Cir. 1977). We agree with the conclusion of the district judge that the “drug courier profile,” by itself, provides no probable cause to arrest an individual. In addition, while a set of facts may arise in which the existence of certain profile characteristics constitutes reasonable suspicion, the circumstances of this case do not provide “specific and articuable facts which, taken together with rational inferences from those facts, reasonably warrant[ed]” the intrusion of an investigatory stop. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880; United States v. Cupps, 503 F.2d 277, 281 (6th Cir. 1974). “Founded suspicion requires some reasonable ground for singling out the person stopped as one who was involved or is about to be involved in criminal activity.” United States v. Carrizoza-Gaxiola, 523 F.2d 239, 241 (9th Cir. 1975) . The activities of the appellants in this case observed by DEA agents, were consistent with innocent behaviour. Even if we were to find the initial stop of appellants to have been justified, the following detention of appellants clearly went beyond the scope of Terry, which justifies only a very limited detention “reasonably related in scope to the justification for [its] initiation.” U. S. v. BrignoniPonce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) citing Terry, supra, 392 U.S. at 29, 88 S.Ct. 1868; and see United States v. Hunter and Allen, 550 F.2d 1066 (6th Cir. 1977). Appellants were not free to leave at any point after the initial stop by the agents. As this court stated in Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974), “[t]he difference between an investigatory stop and an arrest has yet to be spelled out. . . . [However], this was clearly a deprivation of liberty under the authority of law. It does not take formal words of arrest or booking at a police station to complete an arrest.” 501 F.2d at 410. When appellants were taken to the private office and were not free to leave, the arrest was clearly complete. See, United States v. Jackson, 533 F.2d 314 (6th Cir. 1976) . The question thus remains whether following an invalid Terry stop and an unconstitutional arrest of appellants, evidence was properly seized as the result of a valid consent search. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973) citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797. The question of voluntariness of a consent is “a question of fact to be determined from the totality of all the circumstances,” Schneckloth v. Bustamonte, supra, 412 U.S. at 227, 93 S.Ct. at 2048, and as such requires this court to hold the district judge’s finding of voluntary consent to be clearly erroneous before it can be overruled. United States v. Hearn, 496 F.2d 236, 242 (6th Cir.), cert. denied, 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974). Consent “must be proved by ‘clear and positive testimony,’ Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921), and ‘must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion,’ Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965).” United States v. Hearn, supra, 496 F.2d at 244. “[T]he mere fact that a person has been arrested in violation of his constitutional rights casts grave doubt upon the voluntariness of a subsequent consent. The Government has a heavy burden of proof in establishing that the consent was the voluntary act of the arrestee and that it was not the fruit of the illegal arrest.” United States v. Bazinet, 462 F.2d 982, 989-90 (8th Cir.), cert denied, 409 U.S. 1010, 93 S.Ct. 453, 34 L.Ed.2d 303 (1972); see also, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Manning v. Jarnigan, supra, 501 F.2d at 411-412. The fact that appellants were read their Miranda rights does not in and of itself show the voluntariness of the subsequent consent, for “[i]f Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Other factors which the district court held tended to show a voluntary consent are that appellants are of average education and intelligence; had not been formally detained nor subjected to prolonged questioning or any physical punishment, and; McCaleb’s act of unlocking the suitcase. Factors tending to militate against a finding of voluntariness include an unconstitutional stop; an unconstitutional arrest; the detention of appellants in unfamiliar surroundings by three agents; the statement to McCaleb by agent Markonni that he either consent to the search or remain in detention, with his companions while a warrant was sought; the fact McCaleb did no more than unlock the bag, as distinguished from the defendant in Schneckloth, who opened the trunk of his car for the officers, and; the fact that no oral acquiescence or written consent was given by McCaleb. This court concludes that such consent as was here involved was not shown by the government to have been “freely and voluntarily” given and that therefore, the conclusion of the district court to the contrary was clearly erroneous. See, United States v. Hearn, 496 F.2d 236 at 244. Having concluded the above, we need not reach the additional question of trial error raised by appellant Page. The judgment of the district court is reversed. . The motions to suppress of two other defendants, William Van Lewis and Paula Hughes, were also dealt with in this opinion filed by the district court judge following the evidentiary hearings. United States v. Van Lewis, 409 F.Supp. 535 (E.D.Mich.1976). . This situation is distinguishable from that in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) in which the Supreme Court held valid a consent to search given while the defendant was in custody after a lawful arrest. Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_origin	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. LEE FOO v. NAGLE, Commissioner of Immigration. No. 6614. Circuit Court of Appeals, Ninth Circuit. May 16, 1932. Joseph P. Fallon, of San Francisco, Cal., for appellant. Geo. J. Hatfield, U. S. Atty., and L. E. Kilkenny, Asst. U. S. Atty., both of San Francisco, Cal., for appellee. Before WILBUR and SAWTELLE, Circuit Judges. WILBUR, Circuit Judge. This appeal is taken from an order of the District Court denying petition for writ of habeas corpus. Appellant, Lee Foo, claims to be the son of Lee Wot, a native-born citizen of the United States. Upon application for admission into the United States, Lee Foo, his alleged father, Lee Wot, also known as Lee Shew Nom, and his alleged cousin, Lee Wah, were examined in detail as to family life- and the home in Ping On village, China. The testimony of the three witnesses agreed in the main as to many intimate details of the home, family life, relationships, ancestral graves, etc. However, during the course of' the examination certain discrepancies between the testimony of the 'witnesses were-developed, and on the basis of these discrepancies the immigration authorities rejected the testimony as to the relationship between the alleged father and son, and held that the applicant had not sustained the burden of proof upon him to show that he is a citizen of the United States, and for that reason directed that he be returned to China. While he was detained for that purpose, he instituted these proceedings. Some of the alleged discrepancies in regard to the ancestral graves, tombstones, etc., are not of sufficient consequence to justify setting forth in an opinion. On the other hand, the alleged father testified that his oldest son was married, that he lived in the family home in the Ping On village, and that his marriage name was Lee Ngoot L-oy, and his other name was Lee Fong Nai. The appellant testified that his oldest brother had no marriage name, and that he knew this to be so because he lived in the home with him. A similar situation arose with reference to the marriage name of the nephew of the alleged father, living in the adjoining house in the Ping On village. The alleged father testified that his brother’s oldest son was named Lee Wee, that he was married and his marriage name was Lee Em Loy. Appellant, on the other hand, testified that this cousin had no marriage name, and, although his attention was directed to the fact that his alleged father had testified that Lee Wee had a marriage name, the applicant testified to the contrary. There was also a discrepancy as to the name of the wife of Lee Wee. The other members of the family testified that her name was Dea Shee, while the applicant testified that her name was Jin Shee. The alleged father testified that, when he-was in China from November, 1927, to June,. 1930, he intended bringing the applicant to the United States with him; that the applicant was willing to come with him, and would have come with him if he could have secured passage, that he told the applicant of his plan to bring him to the United States, and, when he found that he could not get passage for him, told him that he would send for him later; that the applicant quit school in 192-9 in order to prepare to come to the United States. The applicant, however, testified that the subject of his coming to the United States was not discussed between them; that his father never expressed any desire or intention of having him come to the United States with him when he last returned, and that he did not quit school on account of the proposed trip to the United States, nor did such trip have any effect upon him in that regard; that he quit school because he did not want to attend any more and that was the only reason. The alleged father testified to an outside window in each bedroom in the house in China closed by a shutter and iron grating. The appellant, who lived in the house from the time of his birth until he left to come to the United States, testified that there were no windows in the outer walls of the house. In view of these discrepancies, and notwithstanding the many agreements in the evidence as to the many details upon which the witnesses were questioned by the immigration authorities, we cannot say that the rejection of the testimony was so arbitrary as to have deprived the appellant of a fair hearing. Order affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_crmproc1	12	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited. UNITED STATES of America, Appellee, v. John MUSACCHIA and Joseph Gambino, Defendants-Appellants. Nos. 967, 968, Dockets 88-1491, 88-1495. United States Court of Appeals, Second Circuit. Argued March 6, 1989. Decided March 21, 1990. Paula Schwartz Frome (James 0. Druker, Kase & Druker, Garden City, N.Y., of counsel), for defendant-appellant John Mu-sacchia. Charles L. Weintraub (John L. Pollok, Hoffman & Pollok, New York City, of counsel), for defendant-appellant Joseph Gambino. Alan Hechtkopf, Tax Div., Dept, of Justice (James I.K. Knapp, Acting Asst. Atty. Gen., Shirley D. Peterson, Asst. Atty. Gen., Washington, D.C., Robert E. Lindsay, Atty., Tax Div., Dept, of Justice, Washington, D.C., and Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee U.S. Before CARDAMONE and PRATT, Circuit Judges, and LASKER, District Judge. Honorable Morris E. Lasker, United States District Judge for the Southern District of New York, sitting by designation. LASKER, District Judge: John Musacchia and Joseph Gambino appeal their convictions on one count of conspiracy to defraud the United States by willfully failing to pay gasoline excise taxes in violation of 18 U.S.C. § 371 (1988) and 26 U.S.C. §§ 7201, 7202 and 7206(2) (1982). Musacchia appeals his conviction on six additional counts of aiding and abetting evasion of such taxes. Appellants contend that it was reversible error for the prosecution to bolster the testimony of three witnesses by eliciting testimony on direct examination that their cooperation agreements with the government required them to tell the truth. Mu-sacchia also asserts that the statute of limitations bars his prosecution on the six counts charging aiding and abetting of substantive tax evasion offenses under §§ 7201 and 7202. In supplemental briefing following the Supreme Court’s holding in Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (holding jury selection by magistrates not authorized under the Federal Magistrates Act), appellants urge reversal because they did not consent to jury selection by a magistrate. For the reasons discussed below, we conclude that the appeals are without merit and affirm. BACKGROUND Musacchia owned and operated O.K. Petroleum (“O.K.”), a corporation that sold gasoline and heating oil through retail and wholesale outlets in New York State. During the period at issue federal law imposed an excise tax of nine cents on gasoline sold by producers and certain wholesale distributors. In December 1982, O.K. applied for a Registration for Tax-Free Transactions (“Form 637”) from the Internal Revenue Service (“IRS”), which would exempt the company from the excise tax. O.K.’s application was never approved. Thereafter O.K. made large purchases of gasoline from two distributors but refused to pay the distributors the money due for federal excise taxes, representing first that the purchases were tax-exempt because O.K. was about to receive, and then that it had received, a Form 637. O.K. also purchased gasoline from General Oil Distributors, Inc. (“General Oil”) in 1983 and failed to pay $270,000 in excise taxes by representing that it held a valid Form 637. When General Oil discovered that O.K. lacked a Form 637 it barred all tax-exempt sales to O.K. Musacchia subsequently devised a “daisy chain scheme” to purchase untaxed gasoline. Under this scheme Rappaport Fuel Company (“Rappaport”), which held a valid Form 637, would purchase tax-exempt gasoline from various suppliers and then create fictitious invoices for sales to transient front companies that were not controlled by appellants, but which they formed for the specific purpose of evading excise taxes. These companies had valid Forms 637 and operated only long enough to allow Rappaport to document the fictitious sales. Rappaport would in fact distribute the gasoline to Musacchia. Two companies that Musacchia controlled, AKA Petroleum (“AKA”) and CWM Petroleum (“CWM”) paid the distributors for the gasoline purchased by Rappaport. Through this scheme Musacchia purchased more than 8 million gallons of gasoline on which he failed to pay taxes of more than $777,000. Gambino assisted Musacchia in forming AKA and concealing Musacchia’s involvement in the company. Gambino solicited Joseph J. Ribando, Gambino’s brother-in-law, to sign on as president of AKA and Luis Cuomo to act as Treasurer. Ribando opened a bank account and mail drop for AKA and signed checks at Gambino’s request. He had virtually no other involvement with the company. Cuomo, the treasurer, had even less involvement than Ri-bando. Both ultimately resigned. Gambi-no also helped Musacchia to operate the front companies and to persuade Herman DeJonge, the owner of Rappaport, to make untaxed sales to Musacchia. I. BOLSTERING During direct examination of Arthur Williams (a principal in CWM), Cuomo, Ri-bando and DeJonge, the government elicited testimony that cooperation agreements between the witnesses and the government required the witnesses to tell the truth and provided that if they lied on the witness stand they would be subject to prosecution for perjury. Appellants first objected, without stating grounds, to the prosecutor’s questions to Ribando and Williams about these “truth-telling” provisions but these objections were overruled by the judge. After the judge overruled Musacc-hia’s objection to the prosecutor’s question to DeJonge about the requirement in his agreement that he testify truthfully, defense counsel moved for a mistrial on the ground that the government had improperly bolstered the testimony of Williams, Cuomo and Siegal prior to any defense attack on their credibility. The judge denied the motion but gave the following curative instruction to the jury: The government has brought out testimony from several witnesses that I’ve decided should not have been brought out concerning the possibility of being prosecuted for testifying falsely. So the testimony concerning testifying falsely, I am instructing you to disregard those statements. Appellants now claim that, despite this curative instruction, the government’s deliberate and improper questioning of Williams, Cuomo and Ribando about the truth-telling provisions of their agreements and the court’s failure to sustain appellants’ timely objections constitute reversible error. The government concedes that the defense did not attack the credibility of Ribando, Cuomo and Williams before they testified but argues that even if subject to review, the error alleged by appellants was harmless because: 1) the judge gave a curative jury instruction; 2) defense counsel conceded during their argument for a mistrial that the entire testimony of Ribando and Williams was truthful, and therefore any bolstering was not prejudicial; and 3) Williams’ statement was rendered harmless by a subsequent attack on his credibility by Musacchia’s counsel and by the peripheral nature of his testimony. The government argues at the outset that appellants’ claim of error resulting from the admission of the cooperation agreement testimony is reversible only if it was plain error, because appellants raised only general objections to the testimony at trial. Appellants reply that their objections were “apparent from the context” under Fed.R.Evid. 103(a)(1), which states that a specific ground for objection need be raised only “if the specific ground was not apparent from the context.” Based on a review of the trial transcript, it is clear that appellants’ objections were apparent from the context. Defense counsel specifically objected to questions about the truth-telling provisions of the agreements and not to the testimony that the cooperation agreements were entered into by the witnesses. Accordingly, the objections were preserved for review. This court has consistently held that: Because of the bolstering potential of cooperation agreements... we have permitted such agreements to be admitted in their entirety only after the credibility of the witness has been attacked_ [Bolstering aspects [of cooperation agreements] such as promises to testify truthfully or penalties for failure to do so may only be developed to rehabilitate the witness after a defense attack on credibility. United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988) (footnote and citations omitted); see United States v. Jones, 763 F.2d 518, 522 (2d Cir.), cert. denied, 474 U.S. 981, 106 S.Ct. 386, 88 L.Ed.2d 339 (1985). However, in United States v. Arroyo-Angulo, 580 F.2d 1137, 1146-47 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260 (1978), we held that because defense counsel challenged the credibility of a government witness in the opening statement and later in cross-examination and during summation, such challenge was inevitable, and rendered harmless the error in admitting the witness’s cooperation agreement into evidence during direct examination. The government concedes that it was error to question the witnesses about the truth-telling provisions prior to defense challenges to credibility but contends that such error was harmless. Appellants argue that because the prosecutor intentionally bolstered the testimony of its witnesses the error cannot be deemed harmless under United States v. Borello, 766 F.2d 46, 56 (2d Cir.1985), in which the court held that the admission of and reading from the truth-telling portions of a cooperation agreement on direct examination were not harmless error even though the defense subsequently challenged part of Borello’s testimony. The Borello court did not find it necessary to engage in harmless error analysis, id. at 58, stating: [W]e have previously suggested that an Arroyo-Angulo error is harmless if the defendant subsequently attacks the witness’s credibility. [United States v. Barnes, 604 F.2d 121, 151 (2d Cir.1979).] The error, however, cannot always be harmless.... [W]here we have spelled out in a series of cases the procedure for introducing cooperation agreements... [f]or us to disapprove of the... bolstering of the witness’s testimony and then to declare it harmless error would make our remarks in the previous cases purely “ceremonial.” The error cannot be deemed harmless. Id. at 57-58. Appellants argue that because the prosecutor in this case deliberately questioned the witnesses regarding the truth-telling provisions of the agreements knowing such questioning was improper under the case law of this Circuit, the error in this case cannot be harmless and no harmless error analysis is required under Borello. As evidence of the intentional nature of the error appellants note that, during argument in the robing room on Musacchia’s motion for a mistrial, a member of the prosecution team offered to withdraw the questions about the truth-telling provisions of DeJonge’s agreement. We disagree with appellants’ assertion that the prosecutor intentionally violated the rule against questioning the witnesses about truth-telling provisions of their agreements on direct examination prior to any defense attack on credibility. Indeed, the government contended during the argument on Musacchia’s motion for a mistrial, that it construed Musacchia’s counsel’s opening statement challenge to DeJonge’s credibility as an attack on the credibility of all witnesses, permitting the challenged questions. By contrast, in Borello, defense counsel did not attack the credibility of the cooperating prosecution witness during the opening statement, leading the court to conclude that the prosecution had intentionally violated the law. Moreover, Borello did not establish a per se rule that such errors can never be deemed harmless but rather that they cannot always be harmless. We conclude that the government had a good faith basis for asking the challenged questions. Accordingly, Borel-lo does not bar an examination of the government’s claims that the error was harmless. The government contends that, because defense counsel argued during the trial that Ribando and Cuomo were telling the truth, any bolstering of their testimony was irrelevant to the outcome of the trial. During argument on the mistrial motion, Musacchia’s counsel stated: In fact the defense has been that Williams, Cuomo and Ribando are all telling the truth but that we have an explanation for why they were used in this fashion. Their credibility was not attacked, and at least two of them I didn’t ask questions of.... They weren’t attacked or questioned in any fashion, and as a matter of fact as I’ve stated we adopt their testimony. Based on this statement the government asserts that the defense conceded the truthfulness of Cuomo’s and Ribando’s testimony and, accordingly, there was no. significant chance that the outcome of the trial was affected by the error. Moreover, according to the government, counsel for Musacchia subsequently attacked Williams’ credibility by arguing in summation that Williams had “lied,” thereby rendering his earlier testimony about the truth-telling portions of the agreement admissible under Arroyo-Angulo. Appellants assert that accepting the government’s argument — that the error is harmless because Williams’ credibility was challenged and Ribando and Cuomo’s testimony was not challenged — is tantamount to holding that such an error can never be harmless, contrary to the holding in Borel-lo. However, appellants have not specified how they were prejudiced by the error. Appellants do not dispute that Williams’ testimony was peripheral. Their admission during trial that their strategy involved characterizing the testimony of Cuo-mo and Ribando as truthful lessens the effect of the error with respect to those witnesses. Most importantly, Judge Wex-ler gave a clear curative instruction to the jury not to consider the challenged testimony regarding the truth-telling portions of the cooperation agreements. Given the good faith belief by the prosecutor that the credibility of all the witnesses had been put into question by Musacchia’s opening statement and for the reasons discussed above, we conclude that the admission of testimony regarding the truth-telling requirements of the cooperation agreements on direct examination was harmless error. II. APPLICABLE STATUTES OF LIMITATION Musacchia contends that the applicable statutes of limitation bar his prosecution and subsequent conviction for the substantive crimes charged in counts 2 through 7 of the indictment. The indictment in this case was filed nearly four years after the date of the last act relating to counts 2 through 7. Musacchia asserts that the applicable statute of limitations for counts 2 through 7 is three years; the district court held that the applicable limitations period was six years. 696 F.Supp. 1548, 1550 (E.D.N.Y.1988). The statute of limitations for criminal prosecutions arising under the internal revenue laws is found in 26 U.S.C. § 6531 (1982), which states in relevant part: No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that a period of limitation shall be 6 years— (1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner; (2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof; (3) for the offense of willfully aiding or assisting in, or procuring, counseling, or advising, the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document). The numbered sections above describe offenses carrying a special six-year limitations period rather than the general three-year statute of limitations for internal revenue offenses. Musacchia claims that because § 6531(3) is the only internal revenue offense carrying a six-year statute of limitations which uses the term “aiding, or assisting,” the aiding and abetting of all other substantive internal revenue offenses must carry the general three-year statute of limitation. Accordingly, he argues, counts 2, 4 and 5 of the indictment, under which he was convicted of aiding and abetting violations of 26 U.S.C. §§ 7201 and 7202, must be dismissed as untimely. In support of this argument, Musacchia notes that other specifically enumerated exceptions to the general three-year statute of limitation explicitly refer to specific offenses under the code by section number. For example, 26 U.S.C. § 6531(7) provides that one of the exceptions is “for offenses described in section 7214(a),” which relates to intimidation of officers and employees of the United States. Musacchia asserts that if Congress had intended, as the government argues, to include a particular substantive offense (in this case § 7202 or § 7201) among those covered by § 6531(3) it could have done so by reference to that offense; because it did not do so with respect to the offense at issue the six-year statute of limitations applies only to the offense of aiding and abetting the filing of a false return and not to aiding and abetting of the offenses defined in 26 U.S.C. §§ 7201 and 7202 (counts 2, 4 and 5). In United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970), this court held that the applicable statute of limitations for the offense of aiding and abetting under 18 U.S.C. § 2 is the statute for the substantive offense charged. The court observed: 18 U.S.C. § 2 does not define a crime; rather it makes punishable as a principal one who aids or abets the commission of a substantive crime.... Clearly one can violate [26 U.S.C.] § 7214(a) as an aider and abettor, and the offense, not the persons involved, determines the applicability of the six-year period of limitation. Id. Musacchia fails to address Campbell but its analysis controls in this case. Accordingly, the statute of limitations for the substantive counts charged in the indictment apply in this case. Counts 2, 4, and 6 charge aiding and abetting violations under 26 U.S.C. § 7201, which carries a six-year limitations period as explicitly provided in 26 U.S.C. § 6531(2). It follows that the statute of limitations does not bar prosecution of these counts. Counts 3, 5, and 7 charge aiding and abetting under 26 U.S.C. § 7202 — willful failure to account for and pay over gasoline excise taxes. Musacchia argues for the first time on appeal that § 7202 carries a three-year rather than a six-year statute of limitations. Section 6531(4) mandates a six-year statute of limitations “for the offense of willfully failing to pay any tax.” In United States v. Porth, 426 F.2d 519, 521-22 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), the court held, without analysis, that § 7202 falls within the six-year statute of limitations exception of § 6531(4). Musacchia relies on a more recent district court decision which held to the contrary, United States v. Block, 497 F.Supp. 629 (N.D.Ga.), aff'd, 660 F.2d 1086 (5th Cir.1980). Block held that the language of § 6531(4) does not track the language of § 7202: It seems unlikely to the Court that Congress would have used the language of so many of the § 7201 et seq. code sections when drafting the subsections of § 6531 but omit use of the key words of § 7202 if it had intended to make failure to “pay over” third party taxes subject to the six-year statute of limitations. 497 F.Supp. at 632. A second factor in the Block court's determination was that [Section] 6531(4) is directed at “the offense of willfully failing to pay any tax....” (emphasis added), not a class of offenses. It is quite clear that failure to “pay over” third party taxes [under § 7202] is substantively different from failure to pay taxes. See Slodov v. United States, 436 U.S. 238, 248-50, 98 S.Ct. 1778, 1785-1787, 56 L.Ed.2d 251 (1978). Id. (footnote omitted). The Block court’s analysis is not convincing. Although § 6531(4) does not track the language of § 7202 precisely, in the Supreme Court’s decision in Slodov v. United States, 436 U.S. 238, 249, 98 S.Ct. 1778, 1786, 56 L.Ed.2d 251 (1978), the terms “pay” and “pay over” were used interchangeably. In Slodov, the Court interpreted 26 U.S.C. § 6672, which applies to “[a]ny person required to collect, truthfully account for, and pay over any tax,” as applying “only to failure to pay taxes.... ” 436 U.S. at 249, 98 S.Ct. at 1786. Although the Court was analyzing a different provision of the code — the significance of the word “any” modifying the word “person” under § 6672 — and did not focus on the distinction argued by appellants in this case, it is still significant that the Court used the terms “pay over” and “pay” synonymously. The government persuasively argues that it would be inconsistent for Congress to have prescribed a six-year limitation period for the misdemeanor offense defined in 26 U.S.C. § 7203 (failure to file a return or pay a tax) while providing only a three-year limitation period for the felony offense defined in § 7202. Moreover, the language of § 6531(4) — applying the six-year statute of limitations to “the offense of willfully failing to pay any tax, or make any return... at the time or times required by law or regulations” — suggests that it applies to any of several sections of the Code that define such an offense. For these reasons we find the reasoning of Block unpersuasive and conclude that a six-year statute of limitations applies to the offense defined by 26 U.S.C. § 7202 and thus to counts 3, 5 and 7 in the indictment. Accordingly, Musacchia’s prosecution and conviction were not barred by the applicable statutes of limitation. CARDAMONE, Circuit Judge: We concur in our colleague Judge Lasker’s thorough discussion of Part I (Bolstering) and Part II (Statute of Limitations), which concludes that nothing occurred during the trial which would warrant reversal of Musacchia’s and Gambino’s convictions on the merits. III. JURY SELECTION BY A MAGISTRATE Following oral argument of this appeal on March 6, 1989, we granted a motion on August 80,1989 to withhold decision on the appeal until supplemental briefs could be submitted on the issue of whether the magistrate conducting voir dire of the jury warrants reversal in light of Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). Having now received and considered the supplemental briefs filed by appellants and the government, we turn to this issue. Appellants argue that their convictions must be reversed. We disagree and vote to affirm. The Supreme Court in Gomez addressed the question of “whether presiding at the selection of a jury in a felony trial without the defendant’s consent is among those ‘additional duties’ ” permitted a magistrate under 28 U.S.C.A. § 636(b)(3) (West Supp. 1989). Gomez, 109 S.Ct. at 2239. Section 636(b)(3), part of the Federal Magistrates Act, limits the duties that may be assigned a magistrate to those which the magistrate could execute without being “inconsistent with the Constitution and laws of the United States.” Gomez concluded that § 636(b)(3) did not grant magistrates authority to preside over voir dire in a criminal trial. Because “[ajmong those basic fair trial rights that ‘ “can never be treated as harmless” ’ is a defendant’s ‘right to an impartial adjudicator, be it judge or jury,’ ” the Court concluded that “harmless-error analysis does not apply in a felony case in which, despite the defendant's objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.” 109 S.Ct. at 2248. Since the Supreme Court’s holding there have been a number of circuit court opinions addressing the issues of (1) whether Gomez established a jurisdictional bar to magistrates presiding over voir dire, and (2) whether reversal is mandated where a defendant prior to Gomez either consented or failed to object to empanelment before a magistrate. In two cases handed down subsequent to Gomez, we held that Gomez did not create a jurisdictional bar to a magistrate conducting voir dire, and that reversal is not mandated when a defendant, prior to that decision, consented or failed to object to empanelment by a magistrate. See United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.) (failure to object), petition for cert. filed (Dec. 21, 1989); United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (2d Cir.1989) (explicit consent), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990). Here appellants, who were tried before Gomez was filed, neither consented nor objected to voir dire by a magistrate. Under Vanwort, there is no question that we do not find reversal warranted in these circumstances. Appellants contend — and the dissenting opinion concludes — that we may distinguish the instant case from Van-wort because in this case the jury was selected after our holding in United States v. Garcia, 848 F.2d 1324, 1332 (2d Cir.1988), rev’d sub nom. Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), which stated that “even absent a defendant’s consent [and where a defendant explicitly objects] the Federal Magistrates Act permits district courts to delegate the task of jury selection in felony cases to a magistrate.” We think the distinction irrelevant. In making this argument, appellants rely upon United States v. France, 886 F.2d 223 (9th Cir.1989). There, faced with a factual situation identical to that now before us, the court held that failure to object would not amount to a waiver because two earlier circuit cases “presented [the defendant] with a ‘solid wall of circuit authority’... [that] had already decided, erroneously, that magistrates could conduct voir dire in felony trials. Any objection to the magistrate performing voir dire... would, therefore, clearly have been futile.” Id. at 228. France was predicated on two Ninth Circuit en banc opinions establishing that a defendant was excused from making a contemporaneous objection when there was a “solid wall of authority” that would have' prevented a district court from upholding the defendant’s objection. Id. at 227-28. Significantly, we have not established an exception to the contemporaneous objection requirement in areas where there is a “solid wall of authority” running contrary to the defendant’s objection. The only authority even suggesting an analogous principle in this Circuit is a footnote, cited in the dissenting opinion, in United States v. Indiviglio, 352 F.2d 276 (2d Cir.1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The footnote acknowledges that under plain-error analysis “[ajppellate courts often notice error not objected to below when, under the law existing at the time of the trial, objection would have been futile and when error was asserted on review on the basis of a subsequent appellate decision.” Id. at 280 n. 7. This single line cannot be said to establish a circuit wall-of-authority exception similar to that relied upon by the Ninth Circuit. Nor did Garcia itself create authority sufficient to cause defense counsel to believe any objection to jury empanelment before a magistrate would be futile. The decision in Garcia was promptly appealed to the Supreme Court and reversed a year later. In contrast, the Ninth Circuit already had ruled in two cases decided four years prior to Gomez — certiorari had been denied in both — that magistrates were empowered to conduct voir dire under the Federal Magistrates Act. See United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986). Thus, the posture of the issue in our Circuit is more akin to that existing in the First Circuit where “[tjhere was no binding rule... such as necessarily foredoomed an objection to magistrates’ empaneling.” United States v. Lopez-Pena, Nos. 87-2003 through 87-2008, slip op. at 15-16 (1st Cir. Nov. 22, 1989) (rehearing en banc filed Dec. 20, 1989). Appellants additionally claim that Gomez states that a magistrate is without jurisdiction under the Federal Magistrates Act to conduct voir dire. We disagree. Since Gomez was decided we and other circuits have focused on the “without defendant’s consent” language and generally ruled that where there is either consent or a failure to object a magistrate may conduct the jury voir dire in a felony case. See Vanwort, 887 F.2d at 382-83; Wong, 884 F.2d at 1544; Lopez-Pena, supra, slip op. at 17-18 (not plain error to permit magistrate to preside since objection to magistrate must be raised or it is waived); Government of the Virgin Islands v. Williams, 892 F.2d 305, 310 (3d Cir.1989) (absent demand no constitutional difficulty under § 636(b)(3) with delegating jury selection to magistrate); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (en banc) (harmless error for magistrate to conduct voir dire where defendant failed to object), cert. denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988); United States v. Wey, 895 F.2d 429 (7th Cir.1990) (jury selection by magistrate is not plain error where no prejudice is shown). Con-cededly, France concluded otherwise. The court there ruled that defendant’s failure to contemporaneously object to the magistrate conducting jury selection did not waive her right to appellate review. 886 F.2d at 226. But that holding may be explained, as noted earlier, by what the court perceived as the futility of defendant raising an objection below. We think that the magistrate had subject matter jurisdiction to conduct the voir dire in this case. Federal courts are courts of limited jurisdiction empowered to hear only those cases within the judicial power of the United States, as set forth in Article III of the Constitution, and those over which Congress has conferred to them a jurisdictional grant. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803). From this principle, it has been a commandment etched into the edifice of federal jurisprudence for over 150 years that parties cannot confer subject matter jurisdiction on a federal court, not granted it by the Constitution and Congress, although they may be willing and even anxious for the court to hear and determine the case. See Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 149, 8 L.Ed. 898 (1834); cf. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 & n. 17, 71 S.Ct. 534, 542 & n. 17, 95 L.Ed. 702 (1951). Thus, when the Supreme Court stated that “[a] critical limitation on [the magistrate’s] jurisdiction is consent,” it plainly was not referring to the subject matter jurisdiction of the district court over a felony criminal trial. Gomez, 109 S.Ct. at 2244. Instead, we think the “consent” language has reference to waivable matters under the Federal Rules of Criminal Procedure. Under Fed.R.Crim.P. 12 certain kinds of motions in a criminal prosecution must be raised before trial or they are waived. There are five numbered subdivisions of Rule 12(b) listing such defenses, objections and requests. Lack of subject matter jurisdiction, is not included among these waivable objections, and may be raised at any time. Fed.R.Crim.P. 12(b)(2). Subdivision (1) of Rule 12(b) provides for an objection based on defects in the institution of the prosecution. It is in this category of objectionable matters that the improper selection of the jury by a magistrate falls. It is a “fair trial” right to have an Article III judge conduct voir dire of the jury, see Gomez, 109 S.Ct. at 2248, and for the district court to direct the magistrate to perform it is a defect in the institution of the prosecution. Unable to square the Supreme Court’s use of the word “jurisdiction” with traditional notions of subject matter jurisdiction, see Gomez, 109 S.Ct. at 2244-45 (magistrate’s present expanded criminal trial jurisdiction depends on consent), we believe that what Gomez intended was that — absent Congress’ grant of authority in the magistrate to perform jury selection in a felony case — the improper reference to a magistrate is a waivable defect that must be raised within the time permitted by Fed. R.Crim.P. 12(c) or it is waived under Rule 12(b). Thus, a magistrate’s lack of jurisdiction to act absent consent is analogous to a district court’s lack of jurisdiction over the person, which is also a defense that is waived unless promptly asserted. See United States v. Grote, 632 F.2d 387, 388-89 (5th Cir.1980) (failure to object to personal jurisdiction of trial court because of faulty arrest warrant waived objection); 1 Wright, Federal Practice and Procedure: Criminal 2d § 193 (1982) (collecting cases). We conclude that the defendant’s failure to make a contemporaneous objection to the delegation of jury selection to a magistrate thereby waives the objection. Like our sister circuits, we do not find empanelment before a magistrate reversible on appeal as “plain error.” See Fed.R.Crim.P. 52(b). In any event, we are constrained by our panel holdings in Vanwort and Wong to rule that appellants, not having raised objection to the magistrate’s selection of the jury, waived their right to reversal on appeal. Hence, the judgments of conviction must be affirmed. Judgments affirmed. . In fact, Siegal was never asked about a cooperation agreement. . Because Musacchia’s counsel attacked De-Jonge’s credibility in his opening statement, appellants concede that DeJonge’s subsequent testimony about the truth-telling portions of his cooperation agreement was not error. "If the opening sufficiently implicates the credibility of a government witness... testimonial evidence of bolstering aspects of a cooperation agreement may be introduced for rehabilitative purposes during direct examination." United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988). . Although no objection was made when Cuomo was asked about the truth-telling provisions in his agreement, counsel for Musacchia had asked that his objection to similar questioning of Ri-bando be deemed continuing. . The evidence that Musacchia used the company he formed with Williams as part of the illegal daisy chain scheme is not based on or affected by Williams’ testimony. Williams merely testified that he helped form CWM, established certain bank accounts for the business and later helped dissolve the business. Moreover, Williams testified that he never met or did business with Gambino. . Section 6531(4) states in full that a six-year statute of limitations is required for the offense of willfully failing to pay any tax, or make any return (other than a return required under authority of part Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. Answer:
songer_app_stid	24	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. CITY OF ST. PAUL, a Municipal Corporation, Appellant, v. CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RAILWAY COMPANY, and Chicago and Northwestern Railway Company, Appellees. No. 19151. United States Court of Appeals Eighth Circuit. May 6, 1969. Rehearing Denied July 2, 1969. Mehaffy, Circuit Judge, dissented. Jon R. Duckstad, Asst. Corp. Counsel, City of St. Paul, Minn., for appellant; Joseph P. Summers, Corp. Counsel, City of St. Paul, Minn., on the briefs. Philip Stringer, of Stringer, Donnelly & Sharood, St. Paul, Minn., for appel-lees; R. Paul Sharood, St. Paul, Minn., on the brief. Before MATTHES, MEHAFFY and HEANEY, Circuit Judges. HEANEY, Circuit Judge. The City of St. Paul appeals from a judgment enjoining the enforcement of an amendatory zoning ordinance restricting building heights in a downtown river front area and adjudging the rezoning unconstitutional. The rezoned area includes a city park which stretches more than three blocks along the edge of a sharp bluff overlooking the Mississippi River and Valley. The appellees’ property lies from forty to ninety feet below the surface of the park at the foot of the bluff and is separated from the Mississippi River by railroad tracks and a waterfront street. The ordinance imposed height restrictions which effectively prohibit the erection of building on the appellees’ property which would rise above the level of the park and the adjacent bluff. The city park and the appellees’ property lies largely between the Wabasha Street and Robert Street bridges which cross the Mississippi River and serve as the gateways to the downtown area from the south. The park was established in 1930 and serves to open up the southern approach to the core area which lies immediately to the north of the park. It further serves as a passive recreational area for residents, shoppers, visitors and an estimated 23,000 to 25,000 downtown employees. In the early 1960’s the St. Paul Housing and Redevelopment Authority undertook planning for the renewal and redevelopment of the downtown core area with the cooperation of other public agencies and private interests. The plan was formally adopted in 1964. A similar task was undertaken by the City Planning Department as a part of an effort to develop a comprehensive plan for the entire city. The downtown portion of the comprehensive plan was adopted in March of 1963, and the plan as a whole in April 1963. Both the renewal plan and the comprehensive plan envisioned that the park would remain and that no structures would be built on the railroads’ property which would rise above the level of the park. The area immediately north of the zoned area has undergone the contemplated intensive redevelopment. The Hilton Hotel, Degree of Honor, Y.W.C.A. and Federal Courts buildings have been erected in the last few years. Block J has been cleared for the construction of a high rise apartment building. Further north in the core area, the Osborn, Northwestern National Bank and Farm Credit Bank buildings have been completed and more construction is contemplated. At about the time that the public agencies began their planning, the railroads started a program of disposing of its non-operating property throughout its system. The manager of the Real Estate Department of the railroad contacted a number of parties, beginning in the Spring of 1961, in an effort to stimulate interest in the subject property. He testified that publicity in the Fall of 1963, regarding the possible imposition of height restrictions on the property, dampened the sales effort. In late 1963, the railroads received an offer to purchase about one-half of the property, i. e., the land at the Wabasha Street end, for $4.00 per square foot. It was subject to the condition that the premises not be zoned so as to prohibit the construction of structures above the existing grade of the park. The management of the railroads rejected the offer on the basis that the property was needed for the railroad’s operating purposes. At least two other potential purchasers of the property, who did not intend to build above the level of the park, indicated an interest but made no firm offers. A consulting firm was engaged by the railroads in February, 1966, two months prior to trial, with a view toward a determination of the highest and best use of the property. The railroads’ only interest was to sell the property. The study indicated that the highest and best use would be to construct a motel and four high rise apartments which would rise from ten to twenty-two stories above the park. This use would give the apartment occupants the benefit of the light and view over the river valley but in so doing, would equally deprive others of these benefits. It would also result in the closing off the “front door” of the core area from the southern approaches. The study envisioned building on the property originally deemed necessary for operating purposes. A witness for the railroads testified that the problem had been resolved and the property was available. Although the record is not clear, the city, in the Fall of 1963, apparently first became aware that the railroads were attempting to sell the river bottom property for the possible construction of buildings that would rise above the park level. A number of municipal authorities and boards, including the Housing and Redevelopment Authority, the Planning Boards and the Zoning Board recommended the imposition of height restrictions. The action of the Planning Board was taken after a public hearing. The resolution passed by that Board recited that the rezoning was reasonably related to existing land uses, overall needs of the community and the planning for future land use. On September 3, 1964, the City Council, after a public hearing at which the railroads were the sole voice in opposition, unanimously approved an ordinance restricting height in the questioned area and directed the corporation counsel to draft such an ordinance. The City Council formally adopted the ordinance on September 20, 1966. In May of 1966, the appellees brought suit for a declaratory judgment and asked that the proposed ordinance be declared void and unconstitutional. Following the formal enactment of the ordinance, the appellees filed a supplemental complaint and asked that the enforcement of the ordinance be enjoined or, in the alternative, money damages be awarded. The District Court found that the fair value of the property prior to the passage of the ordinance was $320,000, and that its after value was $150,000. There is substantial evidence in the record to support this finding. The court also found that the ordinance was unreasonable and arbitrary and, therefore, not a valid exercise of the police power because: (1) it bore no substantial relationship to health, safety, morals or the general welfare, and was enacted for aesthetic reasons only; (2) it was an instance of spot zoning and not part of a comprehensive plan; and (3) it was a confiscation without compensation in that the benefit to the public was small in comparison to the detriment of the property owner. The court concluded that the ordinance was “unconstitutional as violative of due process of law.” It enjoined enforcement of the ordinance. The court held that the appellees were not entitled to damages for enforcement of the ordinance during the pendency of the action as any damages during that period were minimal and speculative. “Since it is clear that this was a good faith attempt by the city to exercise its police power and since there is no demonstration that there will be any further improper interference with the plaintiffs’ property rights, the Court does not at this time award damages and thus, in effect, turn this action into an eminent domain proceeding.” It retained jurisdiction for the purpose of granting any further relief which might become necessary and proper under 28 U.S.C. § 2202. We reverse. The appellees concede that the city’s purpose is a public one. They acknowledge that the city can accomplish its objective by the proper exercise of its eminent domain power — compensating the railroads for the damage to their property. They argue, however, that the ordinance is violative of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Minnesota Constitution in that it takes the railroads’ property without compensation. Neither constitutional provision interposes a barrier to the imposition of restrictions on the use of private property if a zoning ordinance is enacted pursuant to a valid exercise of the police power. Goldblatt v. Town of Hempstead, 369 U.S. 590, 593, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); City of Marysville v. Standard Oil Co., 27 F.2d 478 (8th Cir. 1928), aff’d, Standard Oil Co. v. Marysville, 279 U.S. 582, 49 S.Ct. 430, 73 L.Ed. 856 (1929); Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W.2d 363, 369-370 (1953); State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012 (1925), aff’d mem., 273 U.S. 671, 47 S.Ct. 474, 71 L.Ed. 832 (1927). The test of whether the enactment falls within that power is one of reasonableness. The zoning ordinance will be sustained unless its “ * * * provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926). Gorieb v. Fox, 274 U.S. 603, 608-609, 47 S.Ct. 675, 71 L.Ed. 1228 (1927); McMahon v. City of Dubuque, Iowa, 255 F.2d 154, 158-159 (8th Cir.), cert. denied, 358 U.S. 833, 79 S.Ct. 53, 3 L.Ed.2d 70 (1958); Naegele Outdoor Adv. Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206, 212 (1968); State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 70 N.W.2d 404, 407 (1955). In reviewing the trial court’s determination of invalidity, we examine the record not to see whether its findings are supported by evidence but to ascertain upon the whole record whether it is possible to say that the legislative choice is without rational basis. South Carolina State H. Dept. v. Barnwell Bros., 303 U.S. 177, 191-192, 58 S.Ct. 510, 82 L.Ed. 734 (1938); Weinberg v. Northern Pac. Ry. Co., 150 F.2d 645, 648 (8th Cir. 1945). Fairly debatable questions as to the reasonableness, wisdom and propriety of an ordinance are not for the determination of the courts but for that of the legislative body on which rests "the duty and responsibility of the decision. Standard Oil Co. v. Marysville, supra; Naegele Outdoor Adv. Co. v. Village of Minnetonka, 162 N.W.2d at 209. The mere fact that the ordinance seriously depreciates the value of the complainants’ property is not enough to establish its invalidity. Goldblatt v. Town of Hempstead, supra at 594, 82 S.Ct. at 990, American Wood Products Co. v. City of Minneapolis, 21 F.2d 440, 444 (D.Minn.1927) (J. Sanborn), aff’d, 35 F.2d 657 (8th Cir. 1929); Kiges v. City of St. Paul, 62 N.W.2d at 369. Nor can it be invalidated on the grounds that aesthetic considerations will be furthered if it is permitted to stand. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Naegele Outdoor Adv. Co. v. Village of Minnetonka, supra; State ex rel. Twin City Bldg. & Inv. Co. v. Houghton, 144 Minn. 1, 174 N.W. 885, 176 N.W. 159, 162, 8 A.L.R. 585 (1920). An examination of the entire record in the light of the above standards convinces us that the trial court erred in substituting its judgment for that of the City Council. In so holding, we note that the city’s answers to the railroads’ interrogatories were vague, conclusionary, unresponsive and not in accordance with Rule 33, Federal Rules of Civil Procedure. If these answers reflected accurately the sum of the Council’s reasons for enacting the ordinance, we would have no alternative but to hold that they were inadequate. The record indicates, however, that the Council’s action was preceded by studies and recommendations of other municipal agencies; and, that reports of these studies were communicated to the Council. It also shows that the Council conducted a public hearing before passing the ordinance. From a reading of the record, it is fair to say that as a result of the reports and recommendations it received from the public agencies, the Council had before it most of the evidence developed at trial before the District Court including the following: (1) The passage of the ordinance was preceded by studies and favorable recommendations of the Housing and Redevelopment Authority, the Planning Board (after a public hearing) and the Zoning Board. These recommendations were communicated to the City Council. American Wood Products Co. v. City of Minneapolis, supra, at 444. See, Ostrand v. Village of North St. Paul, 275 Minn. 440, 147 N.W.2d 571, 573 (1967). (2) The City Council held a public hearing prior to the adoption of the ordinance. The Housing and Redevelopment Authority, the Planning Board, the Metropolitan Improvement Committee, the Y.W.C.A., the St. Paul Automobile Club and the Downtown Department of the Chamber of Commerce appeared at the hearing and submitted their views as to why the ordinance should be adopted. (3) Mr. B. Warner Shippee, the former director of the Housing and Redevelopment Authority, testified at trial that the downtown renewal project had three objectives: “First, the economic improvement of the city and the central business district. Secondly, its physical improvement; and thirdly, in the course of doing this the removal of blight, deleterious structures and influences of economic disuse in the area.” Mr. Shippee further testified that when the Authority undertook the renewal project, it acted on the assumption “that the area in front of the mall would be kept clear of obstructions- — -that, [the] park would remain and provide sort of a front door for the Capitol Center downtown project as well as generally the central business district.” He added that the subject area was directly related to the renewal project and that the Authority felt that high rise construction could have an adverse affect on property values and the renewal project. “ * * * The Authority actually took cognizance of this problem in a meeting of June 11, 1964, * * . * * [T]he authority commissioners after discussing the matter moved unanimously that it was their opinion that the ordinance [restricting height] was feasible and in the best interest of the community. The discussion had related to the relationship of the ordinance to the Capitol Center Downtown Renewal project. * * (4) Dr. Noland Heiden, City Planner for the City of St. Paul, quoted from the comprehensive city plan as follows: “ ‘A sixth land use area of the central business district can be called the “south Kellogg” area and will remain largely as it now exists. It is composed of the blocks along the edge of the river bluff south of Kellogg Boulevard and presently contains industrial office operations * * . The major proposal is to extend the Kellogg Mall one block up to the east to the post office. This would more fully open up the “front porch” of the central business district and provide necessary land for street improvements designed to facilitate access to the central business district from Warner Road.’ ” (5) Appellees’ witnesses conceded that the property values on the north side of Kellogg Boulevard would be diminished by the erection of high rise building on the appellees’ property which would partially obstruct the view of the river valley. See, State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217, 222, cert. denied, 350 U.S. 841, 76 S.Ct. 81, 100 L.Ed. 750 (1955). No evidence was offered at trial to show: that the ordinance was designed to restrict competition, compare, Pearce v. Village of Edina, 263 Minn. 553, 118 N.W.2d 659, 671, n. 1 (1962); or that the railroads acquired the property with the expectation that it would be used in the manner they now seek, compare, Alexander v. City of Minneapolis, 267 Minn. 155, 125 N.W.2d 583, 585 (1963); or that the railroads cannot continue to use their property as they have in the past. In our view, the appellees’ reliance on Ostrand v. Village of North St. Paul, supra; Alexander v. City of Minneapolis, supra; Pearce v. Village of Edina, supra; and Olsen v. City of Minneapolis, 263 Minn. 1, 115 N.W.2d 734 (1962), is misplaced. While there is language in each opinion supporting the appellees’ position — that an amendatory zoning ordinance designed to protect aesthetic values and resulting in the diminution of the market values of the complainants’ property is invalid- — that language must be viewed in the light of the facts in those cases. Those factual situations were significantly different from the one presented here. We would add that in those four cases, as in those where a contrary result was reached, the Minnesota Court made it clear that the test is one of reasonableness. We are convinced that were this case presented to the Minnesota Supreme Court, it would hold that the determination of the City Council — that the ordinance was reasonably related to the protection of public welfare — would be permitted to stand. In our view, the action of the City Council was based “on reason arid logic and not on whim and caprice.” It promoted a legitimate police power objective — -the renewal of the core area of Downtown St. Paul so as to be a desirable place in which to work, shop, live and enjoy cultural and recreational activities. The benefit to the public in preserving these values was great in comparison to the diminution in market values suffered by the appellees. Reversed. . See Appendixes I, II and III. . In 1922, as part of a general zoning ordinance, the appellees’ property was subjeet-ed to a height restriction of one hundred feet. Property on top of the bluff was restricted to a height of one hundred and fifty feet. In 1929, the height restrictions were removed and the appellees’ property has not been subject to restrictions until the present ordinance was enacted. There is no evidence indicating that either the city or the railroads considered high rise construction on appellees’ property before the 1980’s. . An appellee witness testified with respect to the considerations that went into the establishment of the park in the 1930’s. “St. Paul was going to be progressive. We were going places and we did with a 29 million dollar bond issue: built a new court house [and streets to improve traffic on the north side of the Loop], I can’t give you the thinking of the men that made all the decisions in those days, but I would assume [that the park location was chosen] because of its scenic value, and the outlook over the river and the fact that it was just a delightful place to be.” . The Chicago, St. Paul, Minneapolis and Omaha Railway Company is the owner in fee of the property. On December 31, 1956, under authority from the Interstate Commerce Commission, the property was leased to the Chicago and Northwestern Railway Company. For convenience, the appellees will be occasionally referred to as the “railroads.” . The appellees’ study demonstrating the highest and best use of the property calls for the construction of a motel and four apartment buildings containing 600 apartment units on 102,000 square feet. Under the St. Paul Zoning Code, Chapters 16 through 64, the appellees could not have constructed the 600 apartments without obtaining a variance. It requires 544,200 square feet of land. If the appellees devoted the entire 102,000 square feet to apartments, less than 125 units could be constructed under the Code provisions. The granting of a variance is discretionary and the decision to grant or deny one cannot be reversed in the absence of a clear abuse of that discretion. State v. Gunderson, 198 Minn. 51, 268 N.W. 850, 851 (1936). . The appellees (plaintiffs below) began this action by filing a complaint on May 20, 1966, praying for a declaratory judgment. At that time, the subject ordinance had not been formally adopted but the adoption of the ordinance in principle on September 3, 1964, had the effect of restraining the sale of the subject property. The District Court, on August 31, 1964, denied the appellant’s (defendant below) motion to dismiss the action for failure to state a claim and lack of jurisdiction. The court held that while no jurisdiction existed to declare unconstitutional any ordinance which might impose height restrictions on the subject property in the future, the complaint presented an actual controversy with respect to the ordinance adopted in principle. The City Council, on September 20, 1966, formally adopted the ordinance we consider here and the appellees amended their complaint accordingly. . The Fifth Amendment to the United States Constitution provides in part: “ * * nor shall private property be taken for public use without just compensation.” Article 1, Section 13 of the Minnesota Constitution provides: “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” The appellees argue that the Minnesota provision imposes a stricter standard than that under the federal provision. Because we believe that the ordinance does not violate the Minnesota Constitution as it has been interpreted by the Supreme Court of Minnesota, we express no opinion on whether a more stringent standard exists. . “ ‘ * * * The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public is not — and, consistently with the existence and safety of organized society cannot be — burdened with the condition that the state must compensate suck individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.’ ” Goldblatt v. Town of Hempstead, 369 U.S. 590, 593, 82 S.Ct. 987, 989 (1962). . “The public use, which sustains the taking of property under the power of eminent domain upon compensation paid, differs from the public interest or welfare which justifies the restriction of the individual in the use of his property without compensation, in consideration of the public interest and common welfare of the community. * * * * * * * * “Zoning statutes are becoming common. The police power in its nature indefinable, and quickly responsive, in the interest of common welfare, to changing conditions, authorizes various restrictions upon the use of private property as social and economic changes come. A restriction, which years ago would have been intolerable, and would have been thought an unconstitutional restriction of the owner’s use of his property, is accepted now without a thought that it invades a private right. As social relations become more complex, restrictions on individual rights become more common.” State ex rel. Beery v. Houghton, 164 Minn. 146, 204 N.W. 569, 569-570 (1925), aff’d mem., 273 U.S. 671, 47 S.Ct. 474 (1927). . “This is not to say, however, that governmental action in the form of regulation cannot be so onerous as to constitute a taking which constitutionally requires compensation. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 * * ». There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant, see Pennsylvania Coal Co. v. Mahon, supra, it is by no means conclusive, see Hadacheek v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 * * , where a diminution of value from $800,000 to $60,000 was upheld. * Goldblatt v. Town of Hempstead, supra, at 594, 82 S.Ct. at 990. . “ * * * The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 103 (1954). , “ * * * The mere fact that the adoption of a zoning ordinance reflects a desire to achieve aesthetic ends should not invalidate an otherwise valid ordinance. Thus, if the challenged restriction is reasonably related to promoting the general welfare of the, community or any other legitimate police power objective, the fact that aesthetic considerations were a significant factor in motivating its adoption cannot justify holding it unconstitutional. * * (Citations omitted.) Naegele Outdoor Adv. Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W.2d 206, 212 (1968). . <i * * * n jg time that courts recognize the aesthetic as a factor in life. Beauty and fitness enhance values in public and private structures.” State ex rel. Twin City Bldg. & Inv. Co. v. Houghton, 144 Minn. 1, 176 N.W. 159, 162 (1920). . The trial court found that the traffic and fire protection problems which could be created by the construction of high rise buildings on appellees’ property were not unreasonable and were an insufficient basis on which to sustain the ordinance. We place primary reliance on other factors in sustaining the ordinance. . “Interrogatory number 9: ‘How and in what manner and to what extent does Ordinance No. 13346 promote public health.’ Answer: ‘Unable to answer specifically.’ “Interrogatory number 10: ‘How and in what manner and to what extent does Ordinance No. 13346 promote public safety.’ Answer: ‘Unable to answer specifically.’ “Interrogatory number 11: ‘How, in what manner and to what extent does Ordinance number 13346 promote public order.’ Answer: ‘Unable to answer specifically.’ “Interrogatory number 12: ‘How, in what manner, and to what extent does Ordinance No. 13346 promote public convenience.’ Answer: ‘Unable to answer specifically.’ “Interrogatory number 13: ‘How, in what manner and to what extent does Ordinance No. 13346 promote public prosperity.’ Answer: ‘Unable to answer specifically.’ “Interrogatory number 14: ‘How, in what manner and to what extent does Ordinance No. 13346 promote general welfare.’ Answer: ‘Promotes the general welfare in a general way.’ ” . Mr. Rohland H. Thomssen, Executive Vice President of the Clapp-Thomssen Company of St. Paul, a leading real estate firm in the city, and Mr. Stanley Miller, Vice President of the Real Estate Research Corporation, a real estate eon-suiting firm employed by the railroads, testified that the value of properties on the north side of Kellogg Boulevard would be diminished by high rise construction on appellees’ property. 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_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. UNITED STATES of America, Plaintiff-Appellee, Charles M. Carberry, Investigations Officer, Appellee, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO; the Commission of La Cosa Nostra; Anthony Salerno, also known as Fat Tony; Matthew Ianniello, also known as Matty the Horse; Anthony Provenzano, also known as Tony Pro; Nunzio Provenzano, also known as Nunzi Pro; Anthony Corallo, also known as Tony Ducks; Salvatore Santoro; Christopher Furnari, Sr., also known as Christie Tick; Frank Manzo; Carmine Persico, also known as Junior, also known as The Snake; Gennaro Langella, also known as Gerry Lang; Philip Rastelli, also known as Rusty; Nicholas Marangello, also known as Nicky Glasses; Joseph Massino, also known as Joey Messina; Anthony Ficarotta, also known as Figgy; Eugene Boffa, Sr.; Francis Sheeran; Milton Rockman, also known as Maishe; John Tronolone, also known as Peanuts; Joseph John Aiuppa, also known as Joey O’Brien, also known as Joe Doves, also known as Joey Aiuppa; John Phillip Cerone, also known as Jackie the Lackie, also known as Jackie Cerone; Joseph Lombardo, also known as Joey the Clown; Angelo LaPietra, also known as The Nutcracker; Frank Balistrieri, also known as Mr. B.; Carl Angelo DeLuna, also known as Toughy; Carl Civella, also known as Corky; Anthony Thomas Civella, also known as Tony Ripe; General Executive Board, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Jackie Presser, General President; Weldon Mathis, General Secretary-Treasurer; Joseph Trerotola, also known as Joe T., First Vice President; Robert Holmes, Sr., Second Vice President; William J. McCarthy, Third Vice President; Joseph W. Morgan, Fourth Vice President; Edward M. Lawson, Fifth Vice President; Arnold Weinmeister, Sixth Vice President; John H. Cleveland, Seventh Vice President; Maurice R. Schurr, Eighth Vice President; Donald Peters, Ninth Vice President; Walter J. Shea, Tenth Vice President; Harold Friedman, Eleventh Vice President; Jack D. Cox, Twelfth Vice President; Don L. West, Thirteenth Vice President; Michael J. Riley, Fourteenth Vice President; Theodore Cozza, Fifteenth Vice President; Daniel Ligurotis, Sixteenth Vice President; Salvatore Provenzano, also known as Sammy Pro, Former Vice President, Defendants, Joseph Cimino, Jr., Appellant. No. 1094, Docket 91-6280. United States Court of Appeals, Second Circuit. Argued March 12, 1992. Decided May 27, 1992. Elkan, Abramowitz, New York City (Lawrence S. Bader, Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., of counsel), for appellant. Christine H. Chung, Asst. U.S. Atty., New York City (Roger S. Hayes, Acting U.S. Atty., S.D.N.Y. and Gabriel W. Goren-stein, Asst. U.S. Atty., of counsel), for plaintiff-appellee. Theodore L. Hecht, New York City (Charles M. Carberry, of counsel), for appellee. Before: OAKES, Chief Judge, WALKER, Circuit Judge, and POLLACK, District Judge. Honorable Milton Pollack, U.S. District Judge for the Southern District of New York, sitting by designation, OAKES, Chief Judge: In this appeal, we are asked to decide whether internal union disciplinary sanctions should be upheld against Joseph Cimino, Jr., former President and Business Agent of Local 107 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“IBT”), AFL-CIO, in Philadelphia. The sanctions were imposed for Cimino’s violation of the IBT Constitution through his knowing association with the Boss of the Philadelphia Family of La Cosa Nostra, Nicodemo Scarfo; the violation was proved essentially by three hearsay statements from former La Cosa Nostra members. Cimino appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, upholding the sanctions imposed on him. 777 F.Supp. 1130. For the reasons set forth below, we affirm. I. Background On March 14, 1989, Judge Edelstein approved a Consent Decree that settled civil racketeering charges brought by the Government against the IBT and members of the IBT General Executive Board. We have previously discussed this litigation in detail, as well as the disciplinary provisions of the Consent Decree. See United States v. International Brotherhood of Teamsters (Yellow Freight Systems, Inc.), 948 F.2d 98, 100 (2d Cir.1991); United States v. International Brotherhood of Teamsters (Friedman & Hughes), 905 F.2d 610, 612-13 (2d Cir.1990). On August 30, 1990, the Investigations Officer charged Joseph Cimino, Jr., then President and Business Agent of Local 107 in Philadelphia, with violating Article II, section 2(a) and Article XIX, section 6(b) of the IBT Constitution through his knowing association with Nicodemo Scarfo, the boss of the Philadelphia Family of La Cosa Nostra, during the time he was an officer of Local 107. The Independent Administrator held a hearing on the charge against Cimino on November 29, 1990. In support of the charges, the Investigations Officer relied primarily on the declaration of Special Agent James T. Maher of the Federal Bureau of Investigation, to which extensive evidence was appended as exhibits. In the declaration, Special Agent Maher summarizes Cimino’s association with the Philadelphia Family of La Cosa Nostra and particularly with Nicodemo Scarfo. Special Agent Maher’s declaration is based largely on three hearsay declarations from admitted former members of the Philadelphia Family of La Cosa Nostra — former underboss Philip Leonetti, former capo Lawrence Merlino, and former soldier Nicholas Caramandi. Each statement offers a disheartening glimpse into Cimino’s relationship with the Philadelphia Family in general and with Scarfo in particular. For example, Leonetti characterizes Cimino as “the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.” He goes on to describe various favors which Cimino performed for Scarfo, such as using his union position to arrange for employment of individuals referred to him by members and associates of La Cosa Nostra. In return, Cimino received the support of the Philadelphia Family in his union office. He also describes a meeting which he attended during which Scarfo told Cimino that he “should not be worried in light of the recent murder of John McCullough, a Roofers Union official, because Cimino was under the protection of the Philadelphia Family, and could rely on the family for whatever assistance he or his union might require.” The declarations of Merlino and Caramandi provide similar examples of the association between Cimino and Scarfo, the former of which includes perhaps the most disturbing allegation — that Cimino nodded in agreement when Scarfo proclaimed to him at a meeting, “I’m the union; I run Local 107.” The Investigations Officer also submitted two FBI surveillance reports, one of which states that a Special Agent and a student intern observed Cimino and a fellow union officer at a Philadelphia restaurant on October 19, 1982 with members of the Philadelphia Family. The agent reported that the groups conversed and that the La Cosa Nostra members bought drinks for Cimino and his colleague. In his defense, Cimino offered his own testimony denying the allegations. He also introduced the testimony of six witnesses and submitted three affidavits. Most of the live witnesses offered only their opinions of Cimino’s character. Some of this testimony, however, disputed the characterizations of particular events in the three hearsay declarations. On May 28, 1991, after reviewing the hearing evidence and post-hearing submissions, the Independent Administrator (“IA”) concluded in a written decision that the Investigations Officer satisfied his burden of proving that Cimino had associated knowingly with Scarfo. The IA found that “the evidence reveals a close relationship between Cimino and IBT Local 107 on the one hand, and Scarfo and the Philadelphia Family on the other.” In particular, he found that “Cimino met with members of La Cosa Nostra on numerous occasions, performed services for the Philadelphia Family in exchange for its support, and met with Scarfo or his underlings over a period of years in a variety of places to discuss union business.” As a sanction, the IA banished Cimino permanently from the IBT, ordered Cimino to relinquish all of his IBT-affiliated union positions, and prohibited him from drawing any money from the IBT or any IBT-affiliated source. In addition, the IA ordered that no IBT or IBT-affiliated entity should make any further contributions on Cimino’s behalf to any employee health, pension, and welfare plans, and directed that neither Local 107 nor any other IBT-affiliated entity should make any contributions to Cimino’s legal expenses in connection with this matter. On October 16, 1991, the district court affirmed the IA’s decision in all respects. Cimino now appeals from the district court’s order. II. Discussion The precise standard of appellate review under the consent decree is difficult to identify. The decree provides in Paragraph 16 that the district court, when reviewing the actions of the Independent Administrator, “shall apply the same standard of review applicable to review of final federal agency action under the Administrative Procedure Act.” Pursuant to this provision, the district court reviewed the IA’s decision here to determine if it was arbitrary or capricious. See 5 U.S.C. § 706 (1988) (scope of review under the Administrative Procedure Act (APA)). The consent decree offers no similar guidance on the standard of review for issues raised in this court. Previously, we have not found it necessary to recite an exact standard of appellate review, and we need not do so today. See Friedman & Hughes, 905 F.2d at 616-17 (district court’s order should be affirmed under “any reasonable standard of review”). Under even the supposedly more searching standard of review provided in the APA, which permits agency findings to be set aside only if they are “unsupported by substantial evidence”, the district court’s order must be sustained. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938). The parties do not dispute that reliable hearsay is admissible in IBT union disciplinary hearings, see United States v. International Brotherhood of Teamsters (Senese & Talerico), 941 F.2d 1292, 1297-98 (2d Cir.), cert. denied, — U.S. -, 112 S.Ct. 76, 116 L.Ed.2d 50 (1991), or that reliable hearsay may constitute substantial evidence to support an administrative decision. See Richardson v. Perales, 402 U.S. 389, 402-06, 91 S.Ct. 1420, 1427-30, 28 L.Ed.2d 842 (1971). Rather, Cimino argues that the three incriminating hearsay statements of former Philadelphia Family La Cosa Nostra members are not sufficiently reliable to support the IA’s conclusion that Cimino associated knowingly with Nicodemo Scarfo. We disagree. At the outset, appellant argues that we should consider the statements presumptively unreliable, because the declarants made their statements pursuant to cooperation agreements with the Government. See, e.g., Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 2062, 90 L.Ed.2d 514 (1986) (“[Wjhen one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.”). However, the concept of presumptive unreliability in our Sixth Amendment jurisprudence is inapposite where, as here, there is no danger of a criminal conviction based on unreliable evidence. See id. at 543, 106 S.Ct. at 2063. We are concerned only with whether this evidence was sufficiently reliable such that its admission does not call into question the “integrity and fundamental fairness” of Cimino’s internal union disciplinary hearing. Richardson, 402 U.S. at 410, 91 S.Ct. at 1431. A number of factors support the IA’s and the district court’s conclusion that the statements are reliable. As the IA noted, the statements corroborate each other in crucial respects. First, each declarant maintains that a close relationship existed between Cimino and Local 107, and Scarfo and the Philadelphia Family of La Cosa Nostra. Declaration of Leonetti (“Cimino acted as the primary point of contact for the Philadelphia Family with the Teamsters Union in the vicinity of Philadelphia.”); Declaration of Caramandi (“Scarfo was Cimino’s primary point of contact with the Philadelphia Family ... Cimino’s relationship to Scarfo and the Philadelphia Family was general knowledge among members of the Philadelphia Family.”); Declaration of Merlino (“It was generally understood that the Philadelphia Family used Cimino and his position in the Teamsters to perform favors for the benefit of mob members and associates as needed.”). Moreover, Merlino and Caramandi both state that Scarfo believed Local 107 was part of the Philadelphia Family and that he controlled the union. Furthermore, the statements paint a consistent picture of certain details regarding the relationship between Cimino and Searfo. For example, each declarant asserts that Cimino arranged union job assignments for individuals referred to him by members and associates of the Philadelphia Family. Two of the declarants indicate that Cimino and Scarfo took precautions not to be seen together. Two of the declarants also identify the Saloon restaurant in Philadelphia as an afternoon meeting place where Cimino and Scarfo, or members communicating on Scarfo’s behalf, discussed union business. An FBI surveillance report of October 19, 1982, introduced through Special Agent Maher’s declaration, supports this claim by placing Cimino in the company of Philadelphia Family members at the Saloon on that afternoon. In addition, portions of the former La Cosa Nostra members’ statements describing the structure of the Philadelphia Family of La Cosa Nostra match portions of FBI Special Agent Maher’s declaration where he undertakes a similar description. Each statement is also signed by the declarant, witnessed by at least one federal law enforcement official, and contains an attestation clause indicating that the statement was given voluntarily and is “true and accurate.” Finally, the three declarants faced possible criminal sanctions for making false statements to the FBI. See 18 U.S.C. § 1001 (1988). For these reasons, we conclude that the three hearsay statements were reliable. Moreover, alone they constitute “such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion” that Cimino associated knowingly with Nicodemo Scarfo while serving as President and Business Agent of Local 107. Consolidated Edison, 305 U.S. at 229, 59 S.Ct. at 216. Although the precise details of Cimino’s association with Scarfo provided in each declaration differ, the three statements taken together present a clear image of the influence Nicodemo Scarfo exercised over Local 107 through his relationship with Joseph Cimino. Cimino also contends that his disciplinary sanctions should be overturned because the IA should have credited his testimony denying any involvement with Scarfo or the Philadelphia Family, the testimony of his six witnesses, and the testimony of his three affiants over the three hearsay declarations of the former La Cosa Nostra members. However, when reviewing the IA’s decisions, we do not reweigh the evidence presented at the disciplinary hearing; instead, we look only to see whether adequate evidence was presented to support the IA’s conclusion. See Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”). Here, the three hearsay declarations of the former La Cosa Nostra members were adequate to support the IA’s conclusion. Moreover, the IA found that Cimino’s denials were “self-serving” and that he was not a credible witness. We find no reason to question this credibility determination, especially given the IA’s superior vantage point. Cf. NLRB v. American Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir.1982) (“[Credibility findings ... will not be overturned unless they are ‘hopelessly incredible’ or they ‘flatly contradict’ either the ‘law of nature’ or ‘undisputed documentary testimony.’ ”) (quoting NLRB v. Columbia Univ., 541 F.2d 922, 928 (2d Cir.1976)), cert. denied, 461 U.S. 906, 103 S.Ct. 1876, 76 L.Ed.2d 807 (1983). Cimino bases his final claim for reversal on the IA’s failure to make explicit credibility findings with respect to Cimino’s other witnesses. However, there was no reason for the IA to make explicit findings on their credibility because four of Cimino’s six witnesses offered only their opinions of his good character, rather than offering conflicting testimony that Cimino did not associate with Scarfo based on direct knowledge. The other two witnesses offered alternative explanations for a few events detailed in the hearsay declarations of the former La Cosa Nostra members. Because this testimony did not call into question the bulk of the allegations in the three hearsay declarations, a finding that these witnesses were not credible was unnecessary. Based on the foregoing, the order of the district court affirming the IA’s decision in all respects is affirmed. . Article II, section 2(a) of the IBT Constitution requires every IBT member to "conduct himself ... in a manner so as not to bring reproach upon the Union." Article XIX, Section 6(b) of the IBT Constitution provides a non-exhaustive list of the bases for charges against IBT members, including "violation of [the] oath of office or of the oath of loyalty to the Local Union and the International Union." . But see Association of Data Processing v. Board of Governors, 745 F.2d 677, 683-84 (D.C.Cir.1984), where then Judge Scalia explained: When the arbitrary or capricious standard is performing th[e] function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test, since it is impossible to conceive of a "nonarbitrary” factual judgment supported only by evidence that is not substantial in the APA sense____ 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_casetyp1_1-3-1	K	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America, Appellee, v. Mervin Jarvis CHEERY, Appellant. No. 8355. United States Court of Appeals Fourth Circuit. Argued Oct. 4, 1961. Decided Nov. 6, 1961. LeRoy Scott, Washington, N. C. (Charles P. Green, Raleigh, N. C., on brief), for appellant. Lafayette Williams, U. S. Atty., Greensboro, N. C. (Abner Alexander, Asst. U. S. Atty., Winston-Salem, N. C., on brief), for appellee. Before SOPER and BRYAN, Circuit Judges, and MICHIE, District Judge. MICHIE, District Judge. Mervin Jarvis Cherry was indicted in the Middle District of North Carolina on a charge of being a party to a conspiracy to violate the Internal Revenue Laws of the United States relating to distilled spirits. He was convicted and sentenced to serve five years of which six months was to be an active sentence, the remainder to be served on probation. There were twelve other defendants all of whom were convicted or pleaded guilty. The existence of a conspiracy to violate the Internal Revenue Laws relating to distilled liquor was proved up to the hilt and by this appeal the defendant Cherry does not undertake to contend that there was no such conspiracy. He contends first, that he had nothing whatsoever to do with the matter, the evidence against him being based on a mistake of identity, and second, that even if he did the things which one witness, mistaking someone else for him, testified he did, still those things did not prove that he was a party to the conspiracy. The facts proved with respect to the man who is alleged to have been Cherry can be briefly stated. A government agent, Athan M. Brown, who had accepted work with some of the conspirators, brought a load of sugar to the home of Johnny Richard Davenport and James Henry Davenport who were tenants on a farm owned by the defendant Cherry. The road to the still which was subsequently discovered ran from the Davenports’ home across the Cherry property to the still. The Davenports were admittedly parties to the conspiracy. A man who was unknown to Agent Brown at the time was present at the Davenports’ on the occasion in question and helped to unload the sugar, after first moving some whiskey to make room for the sugar. The man later identified by Agent Brown as Cherry but who was unknown to Agent Brown at the time counted the sugar and said that it was short and further said: “This isn’t the first time we have been short.” He also said: “Another time you brought 6100 pounds in here, and when we counted it, there was only 6000 pounds.” At some later time the agent was shown a photograph of the defendant Cherry and identified him as the man, then unknown to him, who had helped unload the sugar and made the remark about the shortage. And then at the trial, with Cherry seated in the courtroom, he again definitely identified him as the man whom he had seen on the occasion above referred to and who helped unload the sugar and made the remark about the shortage. The defendant argues that it was conclusively proved at the trial that there must have been a mistake in identity inasmuch as the defendant was proved to have been in Raleigh at the time or very shortly before the time when Agent Brown stated he saw him at the Davenports’ home and further argues that even if he had been the man whom Agent Brown saw at the Davenports’ home assisting in unloading the sugar that fact alone would not prove that he was a party to the conspiracy. As to the question of identity we must concede that Cherry’s alibi appears to be a strong one. He and a friend, Shirley Mills, testified that they had gone together to Raleigh on the date in question in the afternoon and had gone to the State Department of Motor Vehicles to have the title of a vehicle transferred. Mrs. Evelyn Boyd, a title examiner for the Department of Motor Vehicles, testified that she remembered the occasion quite distinctly, that it was after her coffee break in the afternoon, that she had waited on one or two other customers before she got to Mr. Cherry and particularly observed him standing in line and that from the fact that it was after her afternoon coffee break and that she had waited on one or two other customers first it must have been an appreciable time after 3:30 p. m. before Cherry could have left her office. Agent Brown testified that it was still light at the time he saw the man he identified as Cherry at the Davenports’ home. And we understand that it is conceded that if Cherry was at Mrs. Boyd’s office at the time she stated he was there he could not have gotten to his farm at the hour the agent says he saw him there. The alibi sounds impressive on paper but the court has not had the advantage the jury had in hearing and seeing the witnesses as they testified. The jury could have believed that Mrs. Boyd was mistaken as to the time she served Cherry. Possibly it was after lunch rather than after her coffee break. And the jury could have believed that Cherry and his friend, and even Mrs. Boyd, were lying. Agent Boyd’s identification of Cherry by looking at a photograph might be regarded as something less than conclusive but his subsequent identification of him in the courtroom is somewhat stronger. His evidence could be believed by the jury and as above indicated the evidence on behalf of Cherry could be disbelieved. In the face of such conflicting evidence this court cannot substitute its judgment for that of the jury who are the legally constituted triers of fact. Conceding then that the jury was entitled to believe that Cherry was the man whom Agent Brown saw at the Davenports’, has it been shown that he was a party to the conspiracy? Counsel for Cherry contend that all that has been proved against Cherry is that he assisted in unloading the sugar after first helping to make room for it by moving some whiskey and they argue that that does not prove that he was a party to the conspiracy. The argument is, in effect, that at most he just happened to be around and gave a helping hand, without being in any other way interested in what was going on. We have no quarrel with the statement of the law as expounded by counsel. There must be a conspiracy and the accused must be a party to it — not merely a person who happened to help in some limited phase without knowing what it was all about. “On the other hand, an accused must join in the agreement to be guilty of a violation of the statute, for even if he commits an overt act, he does not violate the statute unless he joined in the agreement.” Marino v. United States, 9 Cir., 91 F.2d 691, 695, 113 A.L.R. 975. “It has been said over and over again that the conspiracy, not the overt act, is the ‘gist’ of the crime.” United States v. Cohen, 2 Cir., 145 F.2d 82, 94. “An overt act alone is insufficient to constitute a conspiracy. There must be an unlawful agreement to which the * * * act is referable." Hall v. United States, 10 Cir., 109 F.2d 976, 984. And we agree that it follows from this principle that one who sells materials with knowledge that they are intended for use in distilling illicit spirits does not thereby become a party to the conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128. And it is contended that the defendant has not been shown to have any knowledge of, or to have been a party to, any conspiracy any more than the man who sold the sugar. The argument for the defendant might be persuasive if in fact the only evidence connecting him with the conspiracy was the evidence of his assistance in unloading the sugar. But there is more than that. We have adverted before to the fact that the defendant Cherry counted the sugar and claimed it was short. The evidence in full on this point is as follows: “The Court: Which one of the Davenports did you see when you arrived there? “The Witness: James Henry Davenport. James Henry Davenport and Mervin Cherry assisted me in unloading this sugar; before we could unload the fifteen hundred pounds of sugar, we would always back into a little shed or lean-to that was built onto the barn so that the car, any activity would be concealed to people driving by on the road, and unload the sugar into the stall; when I arrived there that day, in that stall was some whiskey in cases, some liquor, and some more sugar; and Mervin Cherry, James Henry, and I took this whiskey over to one side to make room for the fifteen hundred pounds of sugar, and Mervin Cherry assisted me with James Henry Davenport in unloading that sugar from my car, the Pontiac, into that barn stall; and Mervin Cherry counted the sugar, and he said there was only fourteen hundred and eighty pounds of the sugar; part of the sugar was in bales; and I counted the sugar, and Jimmie Griffin was there, and he counted the sugar; and it was agreed there was only fourteen hundred and eighty; and Mervin Cherry said this isn’t the first time we have been short; he said another time, he said you brought sixty one hundred pounds in here, and when we counted it, there was only six thousand pounds. In other words, that was the second time I had shorted them on the sugar; one time before it was a hundred pounds, and this time it was twenty. “Griffin made a note of that, and said he would deduct it from the liquor, and add it on to Ralph’s bill * - » If Cherry had not been a party to the conspiracy but had gone to the place just to see how his tenants were getting along and happened to be there when the sugar arrived and helped to unload it, those facts standing alone probably would be insufficient to show that he was a party to the conspiracy. He might have been an innocent bystander who happened to render a helping hand. But in any such case he would have had no interest in the shortage of the sugar. And he certainly would not have said, “This isn’t the first time we have been short.” (Emphasis supplied.) This statement shows that Cherry had a personal financial interest in the conspiracy. And the fact that Cherry also stated that he had counted the sugar on a previous occasion when it was short also tends to show that he was not an accidental bystander who happened to lend a helping hand. We believe therefore that there is sufficient evidence in the record to justify the jury in finding as they did, that Cherry was a party to the conspiracy, and the conviction must therefore be affirmed. Affirmed. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_r_fiduc	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 "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. GAF CORPORATION, GAF Chemicals Corporation, Jay & Company, Inc., James T. Sherwin, Defendants, GAF Corporation, James T. Sherwin, Appellants. Nos. 444, 445, Dockets 90-1352, 90-1353. United States Court of Appeals, Second Circuit. Argued Nov. 26, 1990. Decided March 18, 1991. Arthur L. Liman, Paul, Weiss, Rifkind, Wharton & Garrison (Max Gitter, John N. Gevertz, Laura Farina, Paul, Weiss, Rif-kind, Wharton & Garrison, of counsel), and David E. Nachman, New York City, for defendant-appellant GAF Corp. Stephen E. Kaufman, P.C., and Kronish, Lieb, Weiner & Heilman, New York City (Alan Levine, William J. Schwartz, Cindi R. Brandt, Kronish, Lieb, Weiner & Heilman, of counsel) for defendant-appellant James T. Sherwin. Roger S. Hayes, Acting U.S. Atty., S.D. N.Y. (Carl H. Lowenson, Jr., Kevin R. Czinger, Daniel Richman, Asst. U.S. Attys., New York City, of counsel), for appellee. Before ALTIMARI and MAHONEY, Circuit Judges, and DALY, District Judge. . The Honorable T.F. Gilroy Daly, United States District Judge for the District of Connecticut, sitting by designation. DALY, District Judge. INTRODUCTION Three trials have been started in this matter. The verdicts here appealed came at the conclusion of the third trial, which began November 13, 1989, and lasted five weeks before Judge Lowe and a jury. Although appellants have presented various issues for our consideration in their consolidated appeal, our primary concerns relate to the effect of the government’s amendment of its bill of particulars, the trial court’s ruling on the defendants’ request that the original bill be admitted into evidence for comparison, the government’s rebuttal summation concerning the subject of the amendment, and the trial court’s ruling on the defendants’ request for an instruction concerning the chief defense theory, which was integrally related to the amendment and the government’s rebuttal summation. GAF and Sherwin appeal from judgments convicting them of conspiring to violate the federal securities and anti-fraud laws, in violation of 18 U.S.C. § 371, price manipulation of the common stock of Union Carbide Corporation from October 1, 1986 through November 10, 1986, in violation of 15 U.S.C. §§ 78i(a)(2), 78ff, and 18 U.S.C. § 2, securities fraud for the manipulative purchases of Union Carbide stock on October 29, 1986, and October 30, 1986, in violation of 15 U.S.C. §§ 78j(b), 78ff, 17 C.F.R. § 240.10b-5, and 18 U.S.C. § 2, wire fraud, in violation of 18 U.S.C. §§ 1343, 2, and aiding and abetting the making and maintaining of false books and records by a securities broker-dealer, in violation of 15 U.S.C. §§ 78q(a), 78ff, 17 C.F.R. §§ 240.-17a-3, 240.17a-4, and 18 U.S.C. § 2. The court sentenced Sherwin to concurrent six-month terms of imprisonment to be followed by concurrent one-year terms of probation. The court also imposed a mandatory $50 special assessment on each count of which he was convicted, for a total assessment of $400. GAF was fined $250,000 on each each count, for a total fine of $2 million, and the court also imposed a $50 special assessment on each count, for a total assessment of $400. The defendants’ chief contention at both the second and third trials was that evidence indicated that Boyd Jefferies, the founder of Jefferies & Company, rather than Sherwin, was responsible for unlawful trades taking place in November, 1986, that the government believed originally that these trades were linked to the trades for which Sherwin was ultimately convicted, and so noted in its original bill of particulars, and that since there was reasonable doubt concerning who was responsible for the November trades, there must be reasonable doubt concerning who was responsible for the trades which were the subject of the third trial. We hold that the unusual history and circumstances of this case required that the court admit into evidence the original bill of particulars for the jury’s comparison, and that the court give an instruction similar to that requested concerning the defendants’ theory of the case. Because the court refused to admit the original bill into evidence, and refused to give the requested instruction, we believe that the chief defense theory was not fairly presented to the jury. Accordingly, as discussed below, we reverse the judgments of conviction and remand this case to the district court for a new trial. DISCUSSION 1. FACTS After an unsuccessful tender offer for Union Carbide in December 1985, GAF held nearly 10% of Union Carbide’s common stock, or approximately 10 million shares. Shortly after October 2, 1986, GAF decided to solicit bids for the possible sale of some or all of its Union Carbide block, and assigned Sherwin, GAF’s Vice-Chairman, to oversee this process. Sherwin solicited bids from the then-leading block traders in the nation, including Jefferies & Company. The block bids which GAF received were generally a fraction of a point lower than publicly-quoted market prices. The government’s evidence indicated that the market price for Union Carbide stock had declined from a high of $2572 per share in April 1986 to a low of $20 per share on October 7, 1986. Although the price of Union Carbide began a recovery in mid-October, on October 28, 1986, it closed at a price ($21% per share) lower than the day before for the first time since October 7, 1986. That same day, market information indicated a large supply of Union Carbide stock available for sale below $22. According to Boyd Jefferies, who testified for the government, GAF’s Chairman Samuel Heyman called him in mid-October to tell him to expect a call from Sherwin. Jefferies testified that Sherwin called later that day to inquire whether Jefferies, if so asked, could make Union Carbide stock close at a particular price or higher for several days in a row. Jefferies testified that he replied affirmatively, and that Sher-win assured him that GAF would guarantee Jefferies against any loss. Jefferies testified that he then informed James Melton, Jefferies & Company’s chief trader, of the substance of this conversation, and that Melton should do whatever Sherwin asked if Sherwin called while he was out of the office. Jefferies further testified that on October 29, 1986, Sherwin called him, indicated that he wanted to proceed with their plan, and asked if Jefferies could close Union Carbide at $22 or higher that day. Jeffer-ies responded affirmatively, and then called Melton in Los Angeles, where he was based, to relay the request. The evidence indicates that on October 29, 1986, shortly before the 4:00 p.m. close of the New York Stock Exchange, Melton called a brokerage firm in New York and placed an order to buy 140,000 shares of Union Carbide stock. In executing Melton’s request, the brokerage firm first bought 50,000 shares of Union Carbide at $21%, exhausting the supply of shares at that price. One minute later, the broker bought 2000 shares of Union Carbide stock at $22 per share. The exchange “specialist” in Union Carbide then executed three “market on the close” orders at $22. Union Carbide closed on October 29, 1986 at $22 per share. After the close of the New York Stock Exchange, Melton purchased 8000 shares of Union Carbide stock on the Pacific Stock Exchange at $22 per share. On October 30, 1986, Union Carbide traded at below $22 per share until Melton again intervened. He instructed his broker to purchase 27,100 shares at $217/s in a series of trades from 3:34 P.M. until 3:53 p.m. Then, in the last two trades of the day in Union Carbide, Melton, through his broker, purchased 10,000 shares at $2278. Union Carbide stock closed on October 30, 1986 at $2278 per share. Melton then purchased all of the shares on the Pacific Stock Exchange that were available at $2274 (1500), and another 1500 shares at $22%. On November 3, 1986, Melton sold a small number of Union Carbide shares at a time so as not to “oversize” the market by increasing the supply of stock too rapidly. Melton “aggressively” sold the remainder of the Union Carbide stock on November 4, 1986 at lower and lower prices as the market reacted (at first adversely) to news of a recapitalization program by Union Carbide. These trades resulted in a loss for Jefferies & Company. On November 6 and 7, 1986, Jefferies & Company purchased 20,500 Union Carbide shares. As in October, the shares were placed in Jefferies & Company’s “802” account — the “house” account. Also, as in October, the purchases were made shortly before the close of trading, and shares were purchased on both exchanges. The purchases also had the effect of slightly increasing Union Carbide’s closing price— this time to just over $23 per share. Jef-feries & Company sold these shares on November 10-12, 1986 without suffering a loss. Melton, called by the government, testified that Sherwin never asked him to manipulate the price of Union Carbide stock, and that on October 29, and 30, as well as on November 3, and 4, and November 6, and 7, he acted pursuant to Jefferies’ specific instructions. Jefferies acknowledged that in his original statement to the government he had stated that he had effectuated the November 6, and 7, 1986 trades in order to “make back” the losses Jefferies & Company has sustained when it sold Union Carbide stock on November 3, and 4, 1986. At trial, however, although acknowledging that his story had changed, Jefferies testified that he personally had no responsibility for the November trades. He contended that he was told by Melton that Sherwin had asked Melton to make the November purchases. Melton denied ever receiving such a request, or making such statements. 2. PROCEDURAL HISTORY Indictment 88 Cr. 415, filed on July 6, 1988, contained ten counts, all relating to the factual scenario described above. Each count charged four defendants: GAF and Sherwin, as well as GAF Chemicals Corporation and Jay & Company, each a wholly owned subsidiary of GAF. The first trial began December 21, 1988. After only a few days of testimony, the district court granted defendants’ motion for a mistrial based upon late disclosure to the defense of an expert’s report indicating that a portion of a document from the files of GAF had been altered with typewriter correction fluid. Defendants thereupon moved to dismiss the indictment on double jeopardy grounds and to stay a retrial pending appeal of the double jeopardy issue. The district court denied these motions. On January 12, 1989, this Court denied defendants’ motion to stay further proceedings in the district court. In his capacity as Circuit Justice, Justice Thur-good Marshall denied defendants’ stay application on January 25, 1989. The second trial commenced January 31, 1989. After six weeks of testimony, jury deliberations began on March 11, 1989. Twelve days later, the jurors announced that they were deadlocked, and the court declared a second mistrial. On August 30, 1989, this Court affirmed the district court’s denial of defendants’ motion to dismiss the indictment on double jeopardy grounds. United States v. GAF Corporation, 884 F.2d 670 (2d Cir.1989). Jury selection in the third trial began on October 24, 1989, and testimony began November 13, 1989. The trial concluded on December 13, 1989 when the jury returned guilty verdicts against defendants Sherwin and GAF on all counts, and acquitted defendants GAF Chemical and Jay & Company, Inc. Appellants’ claims stem from events and rulings in connection with the third trial. 3. THE APPEAL Before the first trial, in response to the defendants’ request the government filed a bill of particulars on September 23, 1988. This bill detailed, among other matters, the date, number of shares, price per share, and stock exchange for each of the transactions referred to in those portions of the Indictment alleging that defendants had engaged in a series of transactions on a national securities exchange by fraudulent and manipulative means. According to this bill, this series of transactions was comprised of trades in Union Carbide stock on October 29 and 30, and November 6 and 7, 1986. At the second trial, the defense argued that if there was reasonable doubt about whether defendants — as opposed to Jeffer-ies — were responsible for the November purchases, then there must be such doubt about whether the defendants were responsible for the October trades. The government, in rebuttal summation, argued that the November trades were not in the Indictment. In response, the defense asked for, and the court gave, an instruction stating that the “series of transactions” charged in the indictment included both the October and November trades. The court also read from the original bill of particulars. As noted, the jury was unable to reach a verdict. On October 6, 1989, between the second and third trials, the government filed an amended bill of particulars which included only the October 29 and 30 trades in the charged series of transactions. At the third trial, during appellants’ cross examination of Jefferies, they sought to introduce the government’s original bill of particulars. Judge Lowe denied this offer, stating that a bill of particulars is not a pleading, and the government is not bound by it. Judge Lowe further noted that the government has absolute discretion to determine the contents of what it chooses to prove in a criminal case, as well as the absolute discretion to withdraw any proof it chooses. Finally, Judge Lowe noted that a bill of particulars is not evidence in a case, and that there is no doctrine of admissions “against the government the same as there would be against civil litigants or against defendants in a criminal case.” During the trial, portions of testimony and exhibits described the November transactions. In summation, the appellants argued that the trading patterns by Jefferies & Company in the November transactions were identical to those in October, and that since Jefferies was responsible for the November trades, he, rather than Sherwin, must also have been responsible for the October trades. Defense counsel called the November trades “the key to the puzzle....” On rebuttal summation, the government addressed the defense contentions. The government argued “[t]he November purchases of Union Carbide stock by Jefferies & Company is another smokescreen. The defendants want you to focus on the November purchases so that you don’t look at the October purchases.” The government pointed out what it perceived were differences between the October and November trades, and then noted “there is another essential difference between the October purchases and the November purchases. The November purchases are not in this indictment. The October purchases are in this indictment.” The government also stated that “this case is not about the November trades.” On the Monday following the government’s rebuttal summation, defendants requested in writing the following curative instruction: In its rebuttal summation, the government argued that the defendants’ references to Jefferies’ November purchases of Union Carbide were a smokescreen. I instruct you that you may consider the evidence of the November purchases in reaching your conclusion as to who was responsible for the October purchases of Union Carbide. The court denied defendants’ request, responding “I deny that. I just don’t even need argument on that.” (a) The Bill of Particulars Appellants assign as error Judge Lowe’s denial of defendants’ motion to introduce the Government’s original bill of particulars into evidence when cross-examination of Jefferies began. Appellants urge that the original bill, which included the November transactions as unlawful conduct attributable to Sherwin and GAF, constitutes an admission of a party-opponent under Federal Rule of Evidence 801(d)(2), and should have been admitted for the jury’s consideration. Specifically, appellants contend that the government’s original version of the events, which linked the October and November trades, had been discredited at the second trial and the government, therefore, deliberately adopted fundamental changes in its version of the facts in order to enhance its chances of success. Federal Rule of Evidence 801(d)(2) provides, in relevant part, that a statement is not hearsay if “the statement is offered against a party and is (A) the party’s own statement, in either an individual or representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth,____” The typical admission that falls within the parameters of this rule is that made by an actual party to a suit, whereby he or she, or his or her agent, has commented upon a matter in issue and within that person’s personal knowledge. See generally, Cleary, McCormick on Evidence (2d ed.) 628-643 (1972). In United, States v. McKeon, 738 F.2d 26 (2d Cir.1984), this Court discussed extensively when statements by counsel may be admissible against a client. Id. at 30. We noted that “statements made by an attorney concerning a matter within his employment may be admissible against the party retaining the attorney,” id. (quoting United States v. Margiotta, 662 F.2d 131, 142 (2d Cir.1981), cert, denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983)), and that this proposition extends to arguments counsel make to the jury. Id.; see also Oscanyan v. Arms Company, 103 U.S. 261, 263, 26 L.Ed. 539 (1880). We also noted that “[a]n admission by a defense attorney in his opening statement in a criminal trial has also been held to eliminate the need for further proof on a given element of an offense.” Id. (citing Dick v. United States, 40 F.2d 609, 611 (8th Cir.1930)). In McKeon, the defendant’s attorney argued to the jury, in his opening statement in the second trial in the matter, that the evidence would show that his client had innocently assisted packing certain crates, and that another individual was actually responsible for an alleged unlawful shipment of weapons. McKeon, 738 F.2d at 28. In a third trial, however, this attorney’s opening statement depicted his client’s role in the offense differently. Id. The prosecution moved to admit into evidence the contradictory portion of the defense attorney’s opening statement from the second trial. Id. The trial judge admitted this statement as an admission of a party opponent. Id. at 29. We affirmed this Ruling, noting that there was no per se rule against the admission of inconsistent prior opening statements. Id. at 31. “To hold otherwise would not only invite abuse and sharp practice but would also weaken confidence in the justice system itself by denying the function of trials as truth-seeking proceedings.” Id. Most significantly, as support for the conclusion reached in McKeon, this Court noted that the law is quite clear that superseded pleadings in civil cases may constitute admissions of party opponents, admissible in the case in which they were originally filed, as well as any subsequent litigation involving that party. Id. (citations omitted). “A party thus cannot advance one version of the facts in its pleadings, conclude that its interests would be better served by a different version, and amend its pleadings to incorporate that version, safe in the belief that the trier of fact will never learn of the change in stories.” Id. This Court quoted extensively from Judge Swan: A pleading prepared by an attorney is an admission by one presumptively authorized to speak for his principal____ When a pleading is amended or withdrawn, the superseded portion ceases to be a conclusive judicial admission; but it still remains as a statement once seriously made by an authorized agent, and as such it is competent evidence of the facts stated, though controvertible, like any other extra-judicial admission made by a party or his agent____ If the agent made the admission without adequate information, that goes to its weight, not to its admissibility. Id. (quoting Kunglig Jarnvagsstyrelsen v. Dexter & Carpenter, Inc., 32 F.2d 195, 198 (2d Cir.), cert. denied, 280 U.S. 579, 50 S.Ct. 32, 74 L.Ed. 629 (1929)). The rule that inconsistent prior pleadings should be made available for the jury’s comparison was reaffirmed recently by this Court in Andrews v. Metro-North, 882 F.2d 705 (2d Cir.1989). There, we wrote that a district court’s refusal to permit jurors to be informed of an amendment to a complaint, and to examine the original complaint was “a substantial abuse of discretion.” Id. at 707 (citing McKeon, 738 F.2d at 31; and Dexter & Carpenter, 32 F.2d at 198). This Court held that the district court’s rulings were in error, and that the statements in the complaints constituted admissions. Id. Although the cases construing the admissibility of inconsistent pleadings spring from civil contexts, McKeon, which embraced the same reasoning in addressing statements of counsel, was a criminal case. Moreover, this Court has recently suggested that affidavits filed in furtherance of an application for the installation of an electronic monitor and a subsequent search may constitute admissions of a party-opponent, and be used as such against the government by a criminal defendant. United States v. Ramirez, 894 F.2d 565, 570 (2d Cir.1990). We there noted that “[a]n argument can be made that when the government advances a statement of its agent in a judicial proceeding to obtain a search warrant, the government has adopted the content of the statement, and a criminal defendant may introduce the statement as a party admission under Fed.R. Evid. 801(d)(2)(B).” Id. Bills of particulars, of course, are not evidence in and of themselves. United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962). Their purpose is to inform a defendant of charges with sufficient precision to allow preparation of a defense, to avoid unfair surprise, and to preclude double jeopardy. See Wong Tai v. U.S., 273 U.S. 77, 82, 47 S.Ct. 300, 302, 71 L.Ed. 545 (1927); U.S. v. Bortnovsky, 820 F.2d 572, 574 (2d Cir.1987). A bill of particulars is a statement of what the government will or will not claim in its prosecution. Murray, 297 F.2d at 819. We think that the same considerations of fairness and maintaining the integrity of the truth-seeking function of trials that led this Court to find that opening statements of counsel and prior pleadings constitute admissions also require that a prior inconsistent bill of particulars be considered an admission by the government in an appropriate situation. Although the government is not bound by what it previously has claimed its proof will show any more than a party which amends its complaint is bound by its prior claims, the jury is at least entitled to know that the government at one time believed, and stated, that its proof established something different from what it currently claims. Confidence in the justice system cannot be affirmed if any party is free, wholly without explanation, to make a fundamental change in its version of the facts between trials, and then conceal this change from the final trier of the facts. See McKeon, 738 F.2d at 31. It is no answer to reply, as the government suggests, that as it reevaluates the strength or significance of its evidence, it may change the “contours” of its case before trial, and is free under Fed.R.Crim.P. 7(f) to amend its bill as justice requires. A party in a civil case may also reevaluate his view of the evidence, and amend his complaint “when justice so requires” pursuant to Fed.R.Civ.P. 15(a). And, as the cases described above have shown, it is a substantial abuse of discretion not to allow the jury to be aware that a complaint has been amended, and to examine the prior complaint. Andrews, 882 F.2d at 707. The government also urges that a bill is not an authoritative adoption by the government of the facts specified therein, but rather a statement of the facts the government intends to prove at trial. Aside from the obvious similarity such a description bears to a complaint in a civil matter, or to counsel’s argument in McKeon, the government also twice suggests that the original bill should be treated in the same manner as an indictment which has been superseded, and not admissible as evidence of the later indictment’s infirmity. Govt’s brief at 24-25 (citing Falter v. United States, 23 F.2d 420, 425 (2d Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1927)). The government’s arguments are without merit. Judge Learned Hand, in the case cited by the government, pointed out that an indictment is not a pleading of the United States. Falter, 23 F.2d at 425. He noted that an indictment is “the charge of a grand jury, and a grand jury is neither an officer nor an agent of the United States, but a part of the court.” Id. “The United States neither selects nor controls [the grand jury], nor has anything to do with it, but to present to it its evidence.” Id. A bill of particulars, on the other hand, is prepared, reviewed, and presented by an agent of the United States. Indeed, whereas the indictment in this case was signed by the foreman of the grand jury, along with the United States Attorney, and begins “[t]he Grand Jury charges:... ”, the bill of particulars is signed by the Assistant United States Attorney who tried this case, and begins “[t]he Government submits ____” Thus, the government’s suggestion that the Court address a bill of particulars as it would an indictment is not persuasive. Any suggestion that the bill is not an admission because it does not represent statements based upon the government’s own knowledge, is also unavailing. The bill is prepared, presumably, from the government’s review of the evidence. See also McKeon, 738 F.2d at 32 (“admissions may... be used even though the statement... was not based upon the personal knowledge of the speaker... ”). As Judge Swan suggested in the civil context, if the bill was prepared without careful evaluation of the evidence, that goes to the weight to be accorded the admission, not to the prior bill’s admissibility. See id. at 31 (citation omitted). Finally, the government’s contention that the district court properly excluded the bill on relevancy grounds fails, too. The government urges that the original bill was not proof that indicated that the defendants were innocent of the October manipulations, nor that Jefferies alone controlled both the October and November deceptions. Nevertheless, in view of the government’s repeated contentions in the third trial that the November trades were significantly different from the October ones, and, especially in view of the government’s argument that the defense contentions concerning the November trades were a “smokescreen”, evidence that the government itself once possessed the view that the October and November trades were linked is certainly relevant to the defense. Moreover, as explained in McKeon, the admissions rule is distinct from normal evi-dentiary rules relating to relevancy. 738 F.2d at 32. “[I]t is in some respects an exception to the general proposition that probative value and reliability are the touchstone of the law of evidence where non-privileged matters are concerned...” Id. Although the reasons for relaxing the relevancy requirements for admissions are not clear, “[i]n all probability, these aspects of the rule are derived vestigially from an older, rough and ready view of the adversary process which leaves each party to bear the consequences of its own acts____” Id. Although this Court circumscribed the use of the admissions rule in order to avoid infringing other important interests, it in no way cast any shadow on the validity of the rule. Id. For all of these reasons, we believe the district court should have permitted the jury to examine the government’s prior bill of particulars. Although the Court in no way suggests that the government should not be able to amend its bill of particulars as it sees fit, we do hold that, if the government chooses to change its strategy at successive trials, and contradict its previous theories of the case and version of the historical facts, the jury is entitled to be aware of what the government has previously claimed, and accord whatever weight it deems appropriate to such information. There is merit still in that “rough and ready” view of the adversary process which leaves parties to bear the consequences of their own acts. Whether Judge Lowe’s Ruling denying the admission of the bill constitutes reversible error in itself in this ease is a question we need not reach, since further events compounded the effect of this Ruling. (b) The Refused Instruction This Court has repeatedly recognized a criminal defendant’s right to a jury charge which reflects the defense theory. United States v. Dove, 916 F.2d 41, 47 (2d Cir.1990) (“[A] criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof, no matter how tenuous that defense may appear to the trial court.”); United States v. Durham, 825 F.2d 716, 718 (2d Cir.1987); see e.g., United States v. Pedro-za, 750 F.2d 187, 205 (2d Cir.1984) (quoting United States v. O’Connor, 237 F.2d 466, 474 n. 8 (2d Cir.1956)) (“[i]t is well established that ‘[a] criminal defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible that evidence may be.’ ”). In Durham, this Court noted that this rule was widely accepted throughout the Circuits. 825 F.2d at 719 (citing United States v. Plummer, 789 F.2d 435, 438 (6th Cir.1986); United States v. Wellington, 754 F.2d 1457, 1463 (9th Cir.1985), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1986); United States v. Hyman, 741 F.2d 906, 912 (7th Cir.1984)). In this case, appellants at all times claimed that they were not responsible for the October trades, and that evidence of their innocence could be found by looking at the November trades. They argued that since the evidence suggested that Jefferies, rather than Sherwin, was responsible for the November trades, and since the two series of trades were virtually identical, and linked, the jury should have examined the November trades in determining who was responsible for the October trades. On appeal, appellants contend that the combination of the court’s exclusion of the original bill of particulars, and the government’s rebuttal summation in which it la-belled the appellants’ contention a smokescreen and stressed that the jury should not look to the November trades since they were not included in the indictment, had the effect of indicating to the jury that consideration of the November trades was improper and inappropriate. Moreover, appellants urge that this situation should have been remedied by the instruction which they urged the court to give, see supra p. 12, and that the court’s failure to accept the defendants’ written suggestion, submitted before the court charged the jury, left the court’s actual charge incomplete and unfair, in light of the entire record. We agree. Although the trial court is not required to review or marshal the evidence for the jury and has broad discretion to decide which facts, if any, it will mention in its comments to the jury, the discretion of the court is circumscribed by the requirement that the charge be fair to both sides. United States v. Gillilan, 288 F.2d 796, 798 (2d Cir.), cert. denied, 368 Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_r_fed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. SPENGLER et al. v. HUGHES TOOL CO. No. 3639. Circuit Court of Appeals. Tenth Circuit. Aug. 7, 1948. Kelsey Hutchinson and Earl Pruet, both of Oklahoma City, Okl. (Richardson, Shartel, Cochran & Pruet, of Oklahoma City, Okl., on the brief), for appellants. Robert F. Campbell, of Houston, Tex., Fisher Ames, of Oklahoma City, Okl., Andrews, Kurth, Campbell & Bradley, of Houston, Tex. (Ames, Ames & Daughtery, of Oklahoma City, Okl., on the brief), for appellee. Before PHILLIPS, BRATTON and and MURRAH, Circuit Judges. BRATTON, Circuit Judge. Hughes Tool Company brought an action against A. F. Spengler Company and A. F. Spengler for injunctive relief. In 1937, decree was entered granting a permanent injunction. No appeal was taken, and the decree became final. In 1946, the defendants filed in the case a petition for modification of the decree. On August 9, 1947, judgment was entered dismissing the petition. 73 F.Supp. 156. On August 21, a motion for new trial on the petition was filed; and on September 26, a supplemental motion for new trial was filed. On October 14, an order was entered denying the motion and the supplemental motion. And on December 29, notice of appeal was filed, appealing from the judgment entered August 9 dismissing the petition for modification of the original decree. A motion was filed in this court to dismiss the appeal on the ground that it was not taken within the time prescribed by law. Under Rule of Civil Procedure 73, 28 U.S.C.A. following section 723c, an appeal is taken from the district court to the circuit court of appeals by filing with the clerk of the district court a notice of appeal. And the filing of the notice within the time prescribed by law is essential to the jurisdiction of the circuit court of appeals. Stradford v. Wagner, 10 Cir., 64 F.2d 749. Section 129 of the Judicial Code, as amended, 28 U.S.C.A. § 227, provides in presently material part that where “an injunction is granted, continued, modified, refused, or dissolved by an interlocutory order or decree, or an application to dissolve or modify an injunction is refused, or an interlocutory order or decree is made appointing a receiver, or refusing an order to wind up a pending receivership or to take the appropriate steps to accomplish the purposes thereof, such as directing a sale or other disposal of property held thereunder, an appeal may be taken from such interlocutory order or decree. * * * The appeal * * * must be applied for within thirty days from the entry of such order or decree * * Taking up the legislative background against which the statute was enacted as one element in determining its operative scope, section 7 of the Act approved March 3, 1891, 26 Stat. 826, 828, provided that where an injunction should be granted or continued by an interlocutory order or decree, an appeal might be taken from such order or decree within thirty days from its entry. By the Act approved February 18, 1895, 28 Stat. 666, section 7 was amended to provide that where an injunction, should be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction should be refused, an appeal might be taken from such interlocutory order or decree within thirty days from its entry. Section 7 was again amended by the Act approved June 6, 1900, 31 Stat. 660, to provide that where an injunction should be granted or continued or a receiver appointed by an interlocutory order or decree, an appeal might be taken from such order or decree within thirty days after the entry thereof. The statute was further amended by the Act approved April 14, 1906, 34 Stat. 116, but the amendment does not seem to be material here. The Act approved March 3, 1911, 36 Stat. 1087, being the Judicial Code, followed. Section 129 thereof provides that where an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree within thirty days from its entry. By the Act approved February 13, 1925, 43 Stat. 936, section 129 was amended, and as amended it contains the provisions having pertinency here. And finally, the section was further amended by the Act approved April 3, 1926, 44 Stat. 233, but the amendment relates to appeals in admiralty and therefore has no bearing here. A careful examination of the several amendments considered in their totality indicates clearly a Congressional intent and purpose to broaden the statute. In its original form, the statute was limited to appeals from interlocutory orders or decrees granting or continuing injunctions. It went no further. But by process of successive amendments, it now covers a much larger field. And while other parts of the statute refer to an interlocutory order or decree granting, continuing, modifying, refusing, or dissolving an injunction, and to an interlocutory order or decree appointing a receiver, or refusing to wind up a pending receivership, the part relating to a judgment or decree refusing to dissolve or modify an injunction contains no such restriction. It provides in clear and unmistakable language that an appeal from an order or decree refusing to dissolve or modify an injunction shall be taken within thirty days from the entry thereof. The word “interlocutory” is not to be found in that part of the statute. And it cannot be said that the omission of the word was an oversight. Instead, it indicates that for reasons satisfactory unto itself, Congress determined that an appeal from any and every order or decree refusing to dissolve or modify an injunction shall be taken within thirty days from the entry of such order or decree. It must be presumed that if Congress had intended to limit that part of the statute to the taking of an appeal from an interlocutory order or decree refusing to dissolve or modify an injunction, it would have used apt and appropriate language to indicate such purpose. But Congress failed to do that. Upon careful consideration, we think that Section 129, supra, governs the time within which the notice of appeal must be filed from an order or decree refusing to dissolve or modify an injunction. And since the notice of appeal in this case was filed long after the time had expired, the appeal is dismissed. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_partywinning	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. IMMIGRATION AND NATURALIZATION SERVICE v. YUEH-SHAIO YANG No. 95-938. Argued October 15, 1996 Decided November 13, 1996 Beth S. Brinkmann argued the cause for petitioner. With her on the briefs were Solicitor General Days, Acting Solicitor General Dellinger, Assistant Attorney General Hunger, and Deputy Solicitor General Kneedler. Howard Horn argued the cause for respondent. With him on the brief were Robert L. Reeves, Franklin W. Nelson, and Bill Ong Hing Daniel J. Popeo and David A. Price filed a brief for the Washington Legal Foundation as amicus curiae urging reversal. Sandra E. Kupelian filed a brief for the American Immigration Lawyers Association et al. as amici curiae urging affirmance. Justice Scalia delivered the opinion of the Court. This case presents the question whether the Attorney General, when deciding whether to grant a discretionary waiver of deportation under the applicable provision of the Immigration and Nationality Act (INA), 95 Stat. 1616, as amended, 8 U. S. C. § 1251(a)(1)(H), may take into account acts of fraud committed by the alien in connection with his entry into the United States. ' Respondent Yueh-Shaio Yang and his wife, Hai-Hsia Yang, were born and married in the People’s Republic of China, and subsequently moved to Taiwan. In order to gain entry to the United States, they executed the following scheme: After divorcing respondent in Taiwan, Hai-Hsia traveled to the United States in 1978 and, using $60,000 provided by respondent, obtained a fraudulent birth certificate and passport in the name of Mary Wong, a United States citizen. Respondent then remarried Hai-Hsia in Taiwan under her false identity and fraudulently obtained an immigrant visa to enter the United States as the spouse of a United States citizen. In 1982, four years after his fraudulent entry, respondent submitted an application for naturalization, which fraudulently stated that his wife “Mary” was a United States citizen by birth and that respondent had been lawfully admitted for permanent residence. In 1985, while respondent’s naturalization application was still pending, respondent and his wife obtained another divorce in order to permit her to obtain a visa under her true name (as the relative of a daughter who had obtained United States citizenship). The Immigration and Naturalization Service (INS) ultimately learned of respondent’s unlawful entry, and in 1992 issued an order to show cause why he should not be deported. The INS maintained that respondent was de-portable under 8 U. S. C. § 1251(a)(1)(A), because he was ex-cludable from the United States at the time of entry under the former 8 U. S. C. §§ 1182(a)(14), (19), and (20) (1988 ed.). Respondent conceded that he was deportable and filed a request for a waiver of deportation under § 1251(a)(1)(H). The Board of Immigration Appeals affirmed the Immigration Judge’s denial of this request. The Board concluded that respondent was statutorily eligible for a waiver, but denied it as a matter of discretion. Although the Board did not consider respondent’s fraudulent entry in 1978 as itself an adverse factor, it did consider, among other things, respondent’s “acts of immigration fraud before and after his 1978 entry into the United States,” App. to Pet. for Cert. 10a, including his first sham divorce to facilitate his wife’s unlawful entry, his 1982 application for naturalization, and his second sham divorce to assist his wife in obtaining an immigrant visa under her real name. visa The Court of Appeals for the Ninth Circuit granted respondent’s petition for review, vacated the Board’s decision, and remanded the case for further proceedings. Yang v. INS, 58 F. 3d 452 (1995). The Ninth Circuit held that the Board abused its discretion by considering as an adverse factor respondent’s participation in his wife’s fraudulent entry, because those acts were “inextricably intertwined with Mr. Yang’s own efforts to secure entry into the country and must be considered part of the initial fraud.” Id., at 453. The Ninth Circuit also concluded that the Board improperly considered respondent’s fraudulent application for naturalization as an adverse factor because that application “must be considered an extension of the initial fraud.” Ibid. We granted certiorari. 516 U. S. 1110 (1996). Section 1251(a)(1)(H) provides, in relevant part, as follows: “The provisions of this paragraph relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 1182(a)(6)(C)(i) of this title [who have obtained a visa, documentation, entry or INA benefit by fraud or misrepresentation] . . . may, in the discretion of the Attorney General, be waived for any alien ... who— “(i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and "(ii) was possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such entry except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title [relating to possession of valid labor certifications, immigrant visas and entry documents] which were a direct result of that fraud or misrepresentation.” The meaning of this language is clear. While it establishes certain prerequisites to eligibility for a waiver of deportation, it imposes no limitations on the factors that the Attorney General (or her delegate, the INS, see 8 CFR §2.1 (1996)) may consider in determining who, among the class of eligible aliens, should be granted relief. We have described the Attorney General’s suspension of deportation under a related and similarly phrased provision of the INA as “ ‘an act of grace’ ” which is accorded pursuant to her “unfettered discretion,” Jay v. Boyd, 351 U. S. 345, 354 (1956) (quoting Escoe v. Zerbst, 295 U. S. 490, 492 (1935)), and have quoted approvingly Judge Learned Hand’s likening of that provision to “ ‘a judge’s power to suspend the execution of a sentence, or the President’s to pardon a convict,’” 351 U. S., at 354, n. 16 (quoting United States ex rel. Kaloudis v. Shaughnessy, 180 F. 2d 489, 491 (CA2 1950)). Respondent contends, however, that the portion of § 1251(a)(l)(H)(ii) requiring the alien to be “otherwise admissible” — that is, not excludable on some ground other than the entry fraud — precludes the Attorney General from considering the alien’s fraudulent entry at all. The text will not bear such a reading. Unlike the prior version of the waiver-of-deportation statute at issue in INS v. Errico, 385 U. S. 214 (1966), under which the Attorney General had no discretion to deny a waiver if the statutory requirements were met, satisfaction of the requirements under § 1251(a)(1)(H), including the requirement that the alien have been “otherwise admissible,” establishes only the alien’s eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General in exercising her discretion to determine who, among those eligible, will be accorded grace. It could be argued that if the Attorney General determined that any entry fraud or misrepresentation, no matter how minor and no matter what the attendant circumstances, would cause her to withhold waiver, she would not be exercising the conferred discretion at all, but would be making a nullity of the statute. But that is a far cry from respondent’s argument that all entry fraud must be excused, which is untenable. Respondent asserts (and the United States acknowledges) that it is the settled policy of the INS to disregard entry fraud or misrepresentation, no matter how egregious, in making the waiver determination. See Delmundo v. INS, 43 F. 3d 436, 440 (CA9 1994). This is such a generous disposition that it may suggest a belief on the part of the agency that the statute requires it; and such a belief is also suggested by the INS’s frequent concessions in litigation that the underlying fraud for which the alien is deportable “should not be considered as an adverse factor in the balancing equation,” Liwanag v. INS, 872 F. 2d 685, 687 (CA5 1989); see also Braun v. INS, 992 F. 2d 1016, 1020 (CA9 1993); Start v. INS, 803 F. 2d 539, 542 (CA9 1986), withdrawn, 862 F. 2d 787 (1988). (Such concessions were facilitated, no doubt, by the Ninth Circuit’s frequent intimations that the statute forbade consideration of the initial fraud. See Hernandez-Robledo v. INS, 777 F. 2d 536, 541 (1985); see also Braun, supra, at 1020; Delmundo, supra, at 441.) Before us, however, the United States disclaims such a position — and even if that were the agency’s view we could not permit it to overcome the unmistakable text of the law. See MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 229-230 (1994). But that does not render the INS’s practice irrelevant. Though the agency’s discretion is unfettered at the outset, if it announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary, capricious, [or] an abuse of discretion” within the meaning of the Administrative Procedure Act, 5 U. S. C. § 706(2)(A). The INS has not, however, disregarded its general policy here; it has merely taken a narrow view of what constitutes “entry fraud” under that policy, excluding events removed in time and circumstance from respondent’s entry: his preentry and postentry sham divorces, and the fraud in his 1982 application for naturalization. The “entry fraud” exception being, under the current statute, a rule of the INS’s own invention, the INS is entitled, within reason, to define that exception as it pleases. The Ninth Circuit held that the acts of fraud counted against respondent can be described as “inextricably intertwined” with, or an “extension” of, the fraudulent entry itself because they were essential to its ultimate success or concealment. Perhaps so, but it is up to the Attorney General whether she will adopt an “inextricably intertwined” or “essential extension” augmentation of her “entry fraud” exception. It is assuredly rational, and therefore lawful, for her to distinguish aliens such as respondent who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation. for the Ninth The judgment of the Court of Appeals for the Ninth Circuit is reversed. It is so ordered. Our jurisdiction over this matter is not in question. See 5 U. S. C. § 702. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRA), Div. C., Department of Defense Appropriations Act, 1997, Pub. L. 104-208,110 Stat. 3009, provides that “[notwithstanding any other provision of law, no court shall have jurisdiction to review . . . any . . . decision or action of the Attorney General the authority for which is specified under [Title 8 U. S. C.] to be in the discretion of the Attorney General _” IIRA § 306(a). That provision does not take effect, however, until April 1,1997. See IIRA §§ 306(c)(1), 309(a) (as amended by Pub. L. 104-302, §2,110 Stat. 3656). The last clause of the quoted provision is less than artfully drawn, since the phrase “that fraud or misrepresentation” has no apparent antecedent. The antecedent was unmistakable in the prior version of the provision, which, in its prologue, that [the aliens] were excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation, or entry into the United States, by fraud or misrepresentation.” 8 U. S. C. § 1251(f) (1988 ed.). In the prologue of the current provision, that explicit (but lengthy) reference to fraud or misrepresentation has been replaced by citation of § 1182(a)(6)(C)(i), which uses almost the same language to define a class of excludable aliens. We think it if not obvious, then at least inevitable, that the phrase “that fraud or misrepresentation” refers to the fraud or misrepresentation for which waiver is sought, alluded to, through citation of § 1182 (a) (6)(G)(i), in the prologue. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
sc_certreason	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. LOCAL 3489, UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al. v. USERY, SECRETARY OF LABOR No. 75-657. Argued November 30, 1976 Decided January 12, 1977 Carl B. Frankel argued the cause for petitioners. With him on the briefs were Alfred E. Lawson, George H. Cohen, Michael H. Gottesman, and Bernard Kleiman. John P. Rupp argued the cause for respondent. On the brief were Solicitor General Bork, Assistant Attorney General Lee, William F. Sheehan III, Leonard Schaitman, Eloise E. Davies, William J. Kilberg, Beate Bloch, and Marshall A. Deutsch. J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal. Mr. Justice Brennan delivered the opinion of the Court. The Secretary of Labor brought this action in the District Court for the Southern District of Indiana under § 402 (b) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 534, 29 U. S. C. § 482 (b), to invalidate the 1970 election of officers of Local 3489, United Steelworkers of America. The Secretary alleged that a provision of the Steelworkers’ International constitution, binding on the Local, that limits eligibility for local union office to members who have attended at least one-half of the regular meetings of the Local for three years previous to the election (unless prevented by union activities or working hours), violated § 401 (e) of the LMRDA, 29 U. S. C. §481 (e). The District Court dismissed the complaint, finding no violation of the Act. The Court of Appeals for the Seventh Circuit reversed. 520 F. 2d 516 (1975). We granted certiorari to resolve a conflict among Circuits over whether the Steelworkers’ constitutional provision violates § 401 (e). 424 U. S. 907 (1976). We affirm. I At the time of the challenged election, there were approximately 660 members in good standing of Local 3489. The Court of Appeals found that 96.5% of these members were ineligible to hold office, because of failure to satisfy the meeting-attendance rule. Of the 23 eligible members, nine were incumbent union officers. The Secretary argues, and the Court of Appeals held, that the failure of 96.5% of the local members to satisfy the meeting-attendance requirement, and the rule’s effect of requiring potential insurgent candidates to plan their candidacies as early as 18 months in advance of the election when the reasons for their opposition might not have yet emerged, established that the requirement has a substantial antidemocratic effect on local union elections. Petitioners argue that the rule is reasonable because it serves valid union purposes, imposes no very burdensome obligation on the members, and has not proved to be a device that entrenches a particular clique of incumbent officers in the local. II The opinions in three cases decided in 1968 have identified the considerations pertinent to the determination whether tlie attendance rule violates §401 (e). Wirtz v. Hotel Employees, 391 U. S. 492; Wirtz v. Bottle Blowers Assn., 389 U. S. 463; Wirtz v. Laborers’ Union, 389 U. S. 477. The LMRDA does not render unions powerless to restrict candidacies for union office. The injunction in § 401 (e) that “every member in good standing shall be eligible to be a candidate and to hold office” is made expressly “subject to . . . reasonable qualifications uniformly imposed.” But “Congress plainly did not intend that the authorization . . . of ‘reasonable qualifications . . .’ should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording . . . .” Wirtz v. Hotel Employees, supra, at 499. The basic objective of Title IV of the LMRDA is to guarantee “free and democratic” union elections modeled on “political elections in this country” where “the assumption is that voters will exercise common sense and judgment in casting their ballots.” 391 U. S., at 504. Thus, Title IV is not designed merely to protect the right of a union member to run for a particular office in a particular election. “Congress emphatically asserted a vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.” Wirtz v. Bottle Blowers Assn., supra, at 475; Wirtz v. Laborers’ Union, supra, at 483. The goal was to “protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government, and, through the election process, to keep the union leadership responsive to the membership.” Wirtz v. Hotel Employees, supra, at 497. Whether a particular qualification is “reasonable” within the meaning of § 401 (e) must therefore “be measured in terms of its consistency with the Act’s command to unions to conduct ‘free and democratic’ union elections.” 391 U. S., at 499. Congress was not concerned only with corrupt union leadership. Congress chose the goal of “free and democratic” union elections as a preventive measure “to curb the possibility of abuse by benevolent as well as malevolent entrenched leadership.” Id., at 503. Hotel Employees expressly held that that check was seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents, and therefore held invalid the candidacy limitation there involved that restricted candidacies for certain positions to members who had previously held union office. “Plainly, given the objective of Title IY, a candidacy limitation which renders 93% of union members ineligible for office can hardly be a 'reasonable qualification.’ ” Id., at 502. Ill Applying these principles to this case, we conclude that here, too, the antidemocratic effects of the. meeting-attendance rule outweigh the interests urged in its support. Like the bylaw in Hotel Employees, an attendance requirement that results in the exclusion of 96.5% of the members from candidacy for union office hardly seems to- be a “reasonable qualification” consistent with the goal of free and democratic elections. A requirement having that result obviously severely restricts the free choice of the membership in selecting its leaders. Petitioners argue, however, that the bylaw held violative of § 401 (e) in Hotel Employees differs significantly from the attendance rule here. Under the Hotel Employees bylaw no member could assure by his own efforts that he would be eligible for union office, since others controlled the criterion for eligibility. Here, on the other hand, • a member can assure himself of eligibility for candidacy by attending some 18 brief meetings over a three-year period. In other words, the union would have its rule treated not as excluding a category of member from eligibility, but simply as mandating a procedure to be followed by any member who wishes to be a candidate. Even examined from this perspective, however, the rule has a restrictive effect on union democracy.' In the absence of a permanent “opposition party” within the union, opposition to the incumbent leadership is likely to emerge in response to particular issues at different times, and member interest in changing union leadership is therefore likely to be at its highest only shortly before elections. Thus it is probable that to require that a member decide upon a potential candidacy at least 18 months in advance of an election when no issues exist to prompt that decision may not foster but discourage candidacies and to that extent impair the general membership’s freedom to oust incumbents in favor of new leadership. Nor are we persuaded by petitioners’ argument that the Secretary has failed to show an antidemocratic effect because he has not shown that the incumbent leaders of the union became “entrenched” in their offices as a consequence of the operation of the attendance rule. The reasons for leaderships becoming entrenched are difficult to isolate. The election of the same officers year after year may be a signal that antidemocratic election rules have prevented an effective challenge to the regime, or might well signal only that the members are satisfied with their stewardship; if elections are uncontested, opposition factions may have been denied access to the ballot, or competing interests may have compromised differences before the election to maintain a front of unity. Conversely, turnover in offices may result from an open political process, or from a competition limited to candidates who offer no real opposition to an entrenched establishment. But Congress did not saddle the courts with the duty to search out and remove improperly entrenched union leaderships Bather, Congress chose to guarantee union democracy by regulating not the results of a union’s electoral procedure but the procedure itself. Congress decided that if the elections are “free and democratic,” the members themselves are able to correct abuse of power by entrenched leadership. Procedures that unduly restrict free choice among candidates are forbidden without regard to their success or failure in maintaining corrupt leadership. Petitioners next argue that the rule is reasonable within § 401 (e) because it encourages attendance at -union meetings, and assures more qualified officers by limiting election to those who have demonstrated an interest in union affairs, and are familiar with union problems. But the rule has plainly not served these goals. It has obviously done little to encourage attendance at meetings, which continue to attract only a handful of members. Even as to the more limited goal of encouraging the attendance of potential dissident candidates, very few members, as we have said, are likely to see themselves as such sufficiently far in advance of the election to be spurred to attendance by the rule. As for assuring the election of knowledgeable and dedicated leaders, the election provisions of the LMRDA express a congressional determination that the best means to this end is to leave the choice of leaders to the membership in open democratic elections, unfettered by arbitrary exclusions. Pursuing this goal by excluding the bulk of the membership from eligibility for office, and thus limiting the possibility of dissident candidacies, runs directly counter to the basic premise of the statute. We therefore conclude that Congress, in guaranteeing every union member the opportunity to hold office, subject only to “reasonable qualifications,” disabled unions from establishing eligibility qualifications as sharply restrictive of the openness of the union political process as is petitioners’ attendance rule. IY Finally, petitioners argue that the absence of a precise statement of what the Secretary of Labor and the courts will regard as reasonable prevents the drafting of a meeting-attendance rule with any assurance that it will be valid under §401 (e). The Secretary, to whom Congress has assigned a special role in the administration of the Act, see Calhoon v. Harvey, 379 U. S. 134, 140 (1964); Dunlop v. Bachowski, 421 U. S. 560 (1975), has announced the following view: “Experience has demonstrated that it is not feasible to establish arbitrary guidelines for judging the reasonableness of [a meeting-attendance eligibility requirement]. Its reasonableness must be gauged in the light of all the circumstances of the particular case, including not only the frequency of meetings, the number of meetings which must be attended and the period of time over which the requirement extends, but also such factors as the nature, availability and extent of excuse provisions, whether all or most members have the opportunity to attend meetings, and the impact of the rule, i. e., the number or percentage of members who would be rendered ineligible by its application.” 29 CFR §452.38 (a) (1976). Obviously, this standard leads to more uncertainty than would a less flexible rule. But in using the word “reasonable,” Congress clearly contemplated exactly such a flexible result. Moreover, on the facts of this case and in light of Hotel Employees, petitioners’ contention that they had no way of knowing that a rule disqualifying over 90% of a local’s members from office would be regarded as unreasonable in the absence of substantial justification is unpersuasive. Affirmed. Constitution of International Union, United Steelworkers of America, Art. VII, §9 (c) (1968). This section provides, in pertinent part: “(e) In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof. . . . The election shall be conducted in accordance with the constitution and bylaws of such organization insofar as they are not inconsistent with the provisions of this title.” The Steelworkers’ attendance requirement was held not to violate §401 (e) in Brennan v. Steelworkers, 489 F. 2d 884 (CA6 1973). Similar meeting-attendance requirements of other unions were found unreasonable in Usery v. Transit Union, 545 F. 2d 1300 (CA1 1976); Brennan v. Teamsters, 161 U. S. App. D. C. 173, 494 F. 2d 1092, 1099-1100 (1974); Wirtz v. Bottle Blowers Assn., 405 F. 2d 176 (CA3 1968). Petitioners challenge this figure in this Court, but we cannot find it clearly erroneous. It is stipulated that of the approximately 660 members of the local, only 22 had attended enough meetings to qualify, and one additional member was found eligible by adding his excused absences to the meetings he attended. Petitioners now contend that other members may also have been eligible because of excused absences. In view of the admitted facts that the average attendance at meetings was only 47, and that the meetings were held in split day and evening sessions so that workers on any shift could attend, it seems unlikely that a significant number of workers could qualify by this method. In any event, petitioners introduced no evidence to suggest that members other than the above 23 were eligible, and the District Court, in its unpublished opinion, apparently accepted the Secretary’s assertion that “in excess of 90%” of the local’s membership was disqualified. In these circumstances, we cannot speculate that the findings of the courts below may have been materially inaccurate. Regular meetings were held on a monthly basis. Thus, in order to attend half of the meetings in a three-year period, a previously inactive member desiring to run for office would have to begin attending 18 months before the election. Petitioners argue that attendance at 18 relatively short meetings over three years is no very onerous burden on a union member. But this argument misconceives the evil at which the statute aims. We must judge the eligibEity rule not by the burden it imposes on the individual candidate but by its effect on free and democratic processes of union government. Wirtz v. Hotel Employees, 391 U. S., at 499. The Secretary suggests that in most unions there is no such organized opposition and that the pattern described in the text is indeed typical. Attendance at Local 3489’s meetings averages 47 out of approximately 660 members. There is no indication in the record that this total represents a significant increase over attendance before the institution of the challenged rule. Also unpersuasive is the argument that a union cannot know in advance how many of its members will be disqualified by a meeting-attendance rule. While the precise number may not be predictable, petitioners must have had some awareness of the general attendance rate at union meetings, and if Local 3489’s attendance rate is at all typical (and there is no contention that it is not), it should have been fairly obvious that a rule disqualifying all who had not maintained 50% attendance for three years, admittedly one of the most stringent such rules among labor unions, would have a significant antidemocratic impact. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
sc_issue_2	04	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. HEART OF ATLANTA MOTEL, INC. v. UNITED STATES et al. No. 515. Argued October 5, 1964. Decided December 14, 1964. Moretón Rolleston, Jr., argued the cause and filed a brief for appellant. Solicitor General Cox argued, the cause for the United States et al. With him on the brief were Assistant Attorney General Marshall, Philip B. Heymann and Harold H. Greene. Briefs of amici curiae, urging reversal, were filed by James W. Kynes, Attorney General of Florida, and Fred M. Burns and Joseph C. Jacobs, Assistant Attorneys General, for the State of Florida; and Robert Y. Button, Attorney General of Virginia, and Frederick T. Gray, Special Assistant Attorney General, for the Commonwealth of Virginia. Briefs of amici curiae, urging affirmance, were filed by Thomas C. Lynch, Attorney General of California, Charles E. Corker and Dan Kaufmann, Assistant Attorneys General, and Charles B. McKesson and Jerold L. Perry, Deputy Attorneys General, for the State of California; Edward JV. Brooke, Attorney General of Massachusetts, for the Commonwealth of Massachusetts; and Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Shirley Adelson Siegel, Assistant Attorney General, for the State of New York. Mr. Justice Clark delivered the opinion of the Court. This is a declaratory judgment action, 28 U. S. C. § 2201 and § 2202 (1958 ed.), attacking the constitutionality of Title II of the Civil Rights Act of 1964, 78 Stat. 241, 243. In addition to declaratory relief the complaint sought an injunction restraining the enforcement of the Act and damages against appellees based on allegedly resulting injury in the event compliance was required. Appellees counterclaimed for enforcement under § 206 (a) of the Act and asked for a three-judge district court under § 206 (b). A three-judge court, empaneled under § 206 (b) as well as 28 U. S. C. § 2282 (1958 ed.), sustained the validity of the Act and issued a permanent injunction on appellees’ counterclaim restraining appellant from continuing to violate the Act which remains in effect on order of Mr. Justice Black, 85 S. Ct. 1. We affirm the judgment. 1. Tihe Factual Background and Contentionss of the Parties. The case comes here on admissions and stipulated facts. Appellant owns and operates the Heart of Atlanta Motel which has 216 rooms, available to transient guests. The motel is located on Courtland Street, two blocks from downtown Peachtree Street. It is readily accessible to interstate highways 75 and 85 and state highways 23 and 41. Appellant solicits patronage from outside the State of Georgia through various national advertising media, including magazines of national circulation; it maintains over 50 billboards and highway signs within the State, soliciting patronage for the motel; it accepts convention trade from outside Georgia and approximately 75% of its registered guests are from out of State. Prior to passage of the Act the motel had followed a practice of refusing to rent rooms to Negroes, and it alleged that it intended to continue to do so. In an effort to perpetuate that policy this suit was filed. The appellant contends that Congress in passing this Act exceeded its power to regulate commerce under Art. I, § 8, cl. 3, of the Constitution of the United States; that the Act violates the Fifth Amendment because appellant is deprived of the right to choose its customers and operate its business as it.wishes, resulting in a taking of its liberty and property without due process of law and a taking of its property without just compensation; and, finally, that by requiring appellant to rent available rooms to Negroes against its will, Congress' is subjecting it to involuntary servitude in contravention of the Thirteenth Amendment. The appellees counter that the unavailability to Negroes of adequate accommodations interferes significantly with interstate travel, and that Congress, under the Commerce Clause, has power to remove such obstructions and restraints; that the Fifth Amendment does not forbid reasonable regulation and that consequential damage does not constitute a “taking” within the meaning of that amendment; that the Thirteenth Amendment claim fails because it is entirely frivolous to say that an amendment directed to the abolition of human bondage and the removal of widespread disabilities associated with slavery places discrimination in public accommodations beyond the reach of both federal and state law. At the trial the appellant offered no evidence, submitting the casé on the pleadings, admissions and stipulation of facts; however, appellees proved the refusal of the motel to accept Negro transients after the passage of thé Act. The District Court, sustained the constitutionality of the sections of the Act under attack (§§ 201 (a), (b) (1) and (c) (1)) and issued a permanent injunction on the counterclaim of the appellees. It restrained the appellant from “[Refusing to accept Negroes as guests in the motel by reason of their race or color” and from “[mjaking any distinction whatever upon the basis of race or color in the availability of the goods, services, 'facilities, privileges, advantages or accommodations offered or made available to the guests of the motel, or to the general public, within or upon any of the premises of the Heart of Atlanta Motel, Inc.” 2. The History of the Act. Congress first evidenced its interest in civil rights legislation in the Civil Rights or Enforcement Act of April 9, 1866. There followed four Acts, with a fifth, the Civil Rights Act of March 1, 1875, culminating the series. In 1883 this Court struck down the public accommodations sections of the 1875 Act in the Civil Rights Cases, 109 U. S. 3. No major legislation in this field had been enacted by Congress for 82 years when the Civil Rights Act of 1957 became law. It was followed by the Civil Rights Act of I960. Three years later, on June 19,1963, the late President Kennedy called for civil rights legislar tion in a message to Congress to which he attached a proposed bill. Its stated purpose was “to promote the general welfare by eliminating discrimination based on race, color, religion, or national origin in... public accommodations through the exercise by Congress of the powers conferred upon it... to enforce the provisions of the fourteenth and fifteenth amendments, to regulate commerce among the several States, and to make laws necessary and proper to execute the powers conferred upon it by the Constitution.” H. R. Doc. No. 124, 88th Cong., 1st Sess., at 14. Bills were introduced in each House of the Congress, embodying the President’s suggestion, one in the Senate being S. 1732 and one in the House, H. R. 7152. However, it was not until July 2, 1964, upon the recommendation of President Johnson, that the Civil Rights Act of 1964, here under attack, was finally passed. After extended hearings each of these bills was favorably reported to its respective house, H. R. 7152 on November 20, 1963, H. R. Rep. No. 914, 88th Cong., 1st Sess., and S. 1732 on February 10, 1964, S. Rep. No. 872, 88th Cong., 2d Sess. Although each bill originally incorporated extensive findings of fact these were eliminated from the bills as they were reported. The House passed its bill in January 1964 and sent it to the Senate. Through a bipartisan coalition of Senators Humphrey and Dirksen, together with other Senators, a substitute was worked out in informal conferences. This substitute was-adopted by the Senate and sent to the House where it was adopted without change. This expedited procedure prevented the usual report on the substitute bill in the Senate as well as a Conference Committee report ordinarily filed in such matters. Our only frame of reference as to the legislative history of the Act is, therefore, the hearings, reports and debates on the respective bills in each house. The Act as finally adopted was most comprehensive, undertaking to prevent through peaceful and voluntary séttlement discrimination in voting,, as well as in places of accommodation and public facilities, federally secured programs and in employment. Since Title II is the only portion under attack here, we confine our consideration to those public accommodation provisions. 3. Title II oj the Act. This Title is divided into seven sections beginning with § 201 (a) which provides that: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination, or segregation on the ground of race, color, religion, or national origin.” There are listed in § 201 (b) four classes of business establishments, each of which “serves the public” and “is a place of public accommodation” within the meaning of § 201 (a) “if its operations affect commerce, or if discrimination or segregation by it is supported by State action.” The covered establishments are: “(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence; “(2) any restaurant, ■ cafeteria... [not here involved]; “(3) any motion picture house... [not here involved]; “(4) any establishment... which is physically located within the premises of any establishment otherwise covered by this subsection, or... within the premises of which is physically located any such covered establishment.... [not here involved].”. Section 201 (c) defines the phrase “affect commerce” as applied to the above establishments. It first declares that “any inn, hotel, motel, or other establishment which provides lodging to transient guests” affects commerce per se. Restaurants, cafeterias, etc., in. class two affect commerce only if they serve or offer to serve interstate travelers or if a substantial portion of the food which they serve or products which they sell have “moved in commerce.” Motion picture houses and other places listed in class three affect commerce if they customarily present films, performances, etc., “which move in commerce.” And the establishments listed in class four affect commerce if they are within, or include within their own premises, an establishment “the operations of which affect commerce.” Private clubs are excepted under certain conditions.. See § 201 (e). Section 201 (d) declares that “discrimination or segregation” is supported by state action when carried on under color of any law, statute, ordinance, regulation or any custom or usage required or enforced by officials of the State or any of its subdivisions. In addition, § 202 affirmatively declares that all persons- “shall be entitled to be free, at any establishment or place, from discrimination or segregation of any kind on the ground of race, color, religion, or national origin, if. such discrimination or segregation is or purports to be required by any law, statute, ordinance, regulation, rule, or order of a State or any agency or political subdivision thereof.” Finally, § 203 prohibits the withholding or denial, etc., of any right or privilege secured by § 201 and § 202 or the intimidation, threatening or coercion of any person with the purpose of interfering with any such right or the punishing, etc., of any person for exercising or attempting to exercise any such right. The remaining sections of the Title are remedial ones for violations of any of the previous sections. Remedies are limited to civil actions for preventive relief. The Attorney General may bring suit where he has “reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this title, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described....” 1206 (a).. A person aggrieved may bring suit, in which the Attorney General may be permitted to intervene. Thirty days’ written notice before filing any such action must be given to the appropriate authorities of a State or subdivision the law of which prohibits the act complained of and which has established an authority which may grant relief therefrom. § 204 (c). In States where such condition does not exist the court after a case is filed may refer it to the Community Relations Service which is established under Title X of the Act. § 204 (d). This Title establishes such service in the Department of Commerce, provides for a Director to be appointed by the President with the advice and consent of the Senate and grants it certain powers, including the power to hold hearings, with reference to matters coming to its attention by reference from the court or between communities and persons involved in disputes arising under the Act. 4. Application of Title II to Heart of Atlanta Motel. It is admitted that the operation of the motel brings it within the provisions of § 201 (a) of the Act and that appellant refused to provide lodging for transient Negroes because of their race or color and that it intends to continue that policy unless restrained. The sole question posed is, therefore, the constitutionality of ühe Civil Right's Act of 1964 as applied to these facts. The legislative history of the Act indicates that Congress based the Act on § 5 and the Equal Protection Clause of the Fourteenth Amendment as well as its power to regulate interstate commerce under Art. I, § 8, cl. 3, of the Constitution. The Senate Commerce Committee made it quite clear that the fundamental object of Title II was to vindicate “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” At the same time, however, it noted that such an objective has been and could be readily achieved “by congressional action based on the commerce power of the Constitution.” S. Rep. No. 872, supra, at 16-17. Our study of the legislative record, made in the light of prior cases, has brought us to the conclusion that Congréss possessed ample power in this regard, and we have therefore not considered the other grounds relied upon. This is not to say that the remaining authority upon which it acted was not adequate, a question upon which we do not pass, but merely that since the commerce power is sufficient for our decision here we have considered it alone. Nor is § 201 (d) or § 202, having to do with state action, involved here and we do not pass upon either of those sections. 5. 'The Civil Rights Cases, 109 U. S. 8 (1888), and their Application. In light of our ground for decision, it might be well at the outset to discuss the Civil Rights Cases, supra, which declared provisions of the Civil Rights Act of 1875 unconstitutional. 18 Stat. 335, 336.- We think that decision inapposite, and without precedential value in determining the constitutionality of the present Act. Unlike Title II of the present legislation, the 1875 Act broadly proscribed discrimination in “inns, public conveyances on land or water, theaters, and other places of public amusement,” without limiting the categories of affected businesses to those impinging upon interstate commerce. In contrast, the applicability of Title II is carefully limited to enterprises having a direct and substantial relation to the interstate flow of goods and peo-pie, except where state action is involved. Further, the fact that certain kinds of businesses may not in 1875 have been sufficiently involved in interstate commerce to warrant bringing them within the ambit of the commerce power is not necessarily dispositive of the same question.today. Our populace had not reached its present mobility,. nor were facilities, goods and services circulating as readily in interstate commerce as they are today. Although the principles which we apply today are those first formulated by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), the conditions of transportation and commerce have changed dramatically, and we must apply those principles to the present state of commerce. The sheer increase in volume of interstate traffic alone would give discriminatory practices which inhibit travel a far larger impact upon the Nation’s com-. merce than such practices had on the economy of another day. Finally, there is language in the Civil Rights Cases which indicates that the Court did not fully consider whether the 1875 Act could be sustained as an exercise of the commerce power. Though the Court observed that “no one will contend that the power to pass it was contained in the Constitution before the adoption of the last, three amendments [Thirteenth, Fourteenth, and Fifteenth],” the Court went on specifically to note that the Act was not “conceived” in terms of the commerce power and expressly pointed out: “Of course, these remarks [as to lack of congressional power] do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an. express or implied denial of such power to the States, as in. the regulation of commerce with foreign nations, among the several States, and with the Indian tribes.... In these cases Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof.” At 18. Since the commerce power was not relied on by the Government and was without support in the record it is understandable that the Court narrowed its inquiry and excluded the Commerce Clause as a possible source of power. In any event, it is clear that such a limitation renders the opinion devoid of authority for.the proposition that the Commerce Clause gives no power to Congress to regulate discriminatory practices now found substantially to affect interstate commerce. We, therefore, conclude that the Civil Rights Cases have no relevance to the basis of decision here where the Act explicitly relies upon the commerce power, and where the. record is filled with testimony of obstructions and restraints resulting from the discriminations found to be existing. We now pass to that phase of the case. 6. The Basis of Congressional Action. While the Act as adopted carried no congressional findings the record of its passage through each house is replete with evidence of the burdens that discrimination by race or color places upon interstate commerce. See Hearings before Senate Committee on Commerce on S. 1732, 88th Cong., 1st Sess.; S. Rep. No. 872, supra-, Hearings before Senate Committee on the Judiciary on S. 1731, 88th Cong., 1st Sess.; Hearings before House Subcommittee No. 5 of the Committee on the Judiciary on miscellaneous proposals regarding Civil Rights, 88th Cong., 1st Sess., ser. 4; H. R. Rep. Ño. 914, supra. This testimony included the fact that our people have become increasingly mobile with millions of people of all races traveling from State to State; that Negroes in particular have been the subject of discrimination in transient" accommodations, having to travel gréat distances to secure the same; that often they have been unable to obtain accommodations and have had to call upon friends to put them up overnight, S. Rep. No. 872, supra, at 14-22; and that these.conditions had become so acute as to require the listing of available lodging for Negroes in a special guidebook which was itself “dramatic testimony to the difficulties” Negroes encounter in travel. Senate Commerce Committee Hearings, supra, at 692-694. These exclusionary practices were found to be nationwide, the Under Secretary of Commerce testifying that there is “no question that this discrimination in the North still exists to a large degree” and in the West and Midwest as well. Id.. at 735, 744. This testimony indicated a qualitative as.well as quantitative effect on interstate travel by Negroes. The former was the obvious impairment of the Negro traveler’s pleasure and convenience that resulted when he continually was uncertain of finding lodging. As for the latter, there was evidence that this uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the Negro community. Id., at 744. This was the conclusion not only of the Under Secretary of Commerce but also of the Administrator of the Federal Aviation Agency who wrote the Chairman of the Senate Commerce Committee that it was his “belief that air commerce is adversely affected by the denial to a substantial segment of the traveling public of adequate and desegregated public accommodations.” Id., at. 12-13. We shall not burden this opinion with further details since the voluminous testimony presents overwhelming evidence that discrimination by hotels and motels impedes interstate travel. 7. The Power of Congress Over Interstate Travel. The power of Congress to deal with these obstructions depends on the meaning of the Commerce Clause. Its meaning was first enunciated 140 years ago by the great. Chief Justice. John Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), in these words: “The subject to be regulated is commerce; and to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities... but it is something more: it is intercourse... between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. [At 189-190.] “To what commerce does this power extend? The constitution informs us, to commerce ‘with foreign nations, and among the several States, and with the Indian tribes.’ “It has, we believe, been universally admitted, that these words comprehend every species of commercial intercourse.... No sort of trade can be carried on... to which this power does not extend. [At 193-194.] “The subject to which the power is next applied, is to commerce ‘among the several States.’ The word ‘among’ means intermingled.... “... [I] t may very properly be restricted to that commerce which concerns more States than one.... The genius and character of the whole government seem to be, that its action is to be applied to all the... internal concerns [of the Nation] which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. [At 194-195.] “We are now arrived at the inquiry — What is this power? “It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. -... If, as has always been understood, the sovereignty of Congress... is. plenary as to those objects [specified in the Constitution], the power over commerce... is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of Congress, their identity with the people,.and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints" on which the people must often rely solely, in all representative governments. [At 196-197.]” In short, the determinative test of the exercise of power by. the Congress undér the Commerce Clause is simply whether the activity sought to be regulated is “commerce which concerns more States than one” and has a real and substantial relation to the national interest. Let us now turn to this facet of the problem. That the “intercourse” of which the Chief Justice spoke included the movement of persons through more States than one was settled as early as 1849, in the Passenger Cases, 7 How. 283, where Mr. Justice McLean stated: “That the transportation of passengers is a part of commerce is not now an open question.” At 401. Again in 1913 Mr. Justice McKenna, speaking for the Court, said: “Commerce among the States, we have said, consists of intercourse and traffic between their citizens, and includes the transportation of persons and property.” Hoke v. United States, 227 U. S. 308, 320. And only four years later in 1917 in Caminetti v. United States, 242 U. S. 470, Mr. Justice Day held for the Court: “The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory, power of Congress, under the commerce clause of the-Constitution, and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to. quéstion.” At 491. Nor does it make any difference whether the transportation is commercial in character. Id.,,at 484r-486. In Morgan v. Virginia, 328 U. S. 373 (1946), Mr. Justice Reed observed as to the modern movement of persons among the States: “The recent changes in transportation brought about by the coming of automobiles [do] not seem of great significance in the problem. People of all races travel today more extensively than- in 1878 when this Court first passed upon state regulation of racial segregation in commerce. [It but] emphasizes the soundness of this Court’s early conclusion in Hall v. DeCuir, 95 U. S. 485.” At 383. The same interest in protecting interstate commerce which led Congress to deal with segregation in interstate carriers and the white-slave traffic has prompted it to extend the exercise of its power to gambling, Lottery Case, 188 U. S. 321 (1903); to criminal enterprises, Brooks v. United States, 267 U. S. 432 (1925); to deceptive practices in the sale of products, Federal Trade Comm’n v. Mandel Bros., Inc., 359 U. S. 385 (1959); to fraudulent security transactions, Securities & Exchange Comm’n v. Ralston Purina Co., 346 U. S. 119 (1953); to misbranding of drugs, Weeks v. United States, 245 U. S. 618 (1918); to wages and hours, United States v. Darby, 312 U. S. 100 (1941); to members of labor unions, Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937); to crop control, Wickard v. Filburn, 317 U. S. 111 (1942); to discrimination against shippers,. United States v. Baltimore & Ohio R. Co., 333 U. S. 169 (1948); to the protection of small business from injurious price cutting, Moore v. Mead’s Fine Bread Co., 348 U. S. 115 (1954); to resale price maintenance, Hudson Distributors, Inc. v. Eli Lilly Co., 377 U. S. 386 (1964), Schwegmann v. Calvert Distillers Corp., 341 U. S. 384 (1951); to professional football, Radovich v. National Football League, 352 U. S. 445 (1957); and to racial discrimination by.owners and managers of terminal restaurants, Boynton v. Virginia, 364 U. S. 454 (1960). That Congress was legislating against moral wrongs in many of these areas rendered its enactments no less valid. In framing Title II of this Act Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the fbsruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power,. Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also, deemed a moral and social wrong. It is said that the operation of the motel here is of a purely local character. But, assuming this to be true, “[i]f it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.” United States v. Women’s Sportswear Mfrs. Assn., 336 U. S. 460, 464 (1949). See Labor Board v. Jones & Laughlin Steel Corp., supra. As Chief Justice Stone put it in United States v. Darby, supra: “The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. See McCulloch v. Maryland, 4 Wheat. 316, 421.” At 118. Thus the power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might have a substantial and harmful effect upon that commerce. One need only examine the evidence which we have discussed above to see that Congress may — as it has — prohibit racial discrimination by motels' serving travelers, however “local” their operations may appear. . Nor does the Act deprive appellant of liberty or property under the Fifth Amendment. The commerce power invoked here by the Congress is a specific and plenary one authorized by the Constitution itself. The only questions are: (1) whether Congress had a rational basis for finding that racial discrimination by motels affected commerce, and (2) if it had such a basis, whether the. means it selected to eliminate that evil are reasonable and appropriate. If they are, appellant has no “right” to select its guests as it sees fit, free from governmental regulation. There is nothing novel about such legislation. Thirty-two States now have it on their books either by statute or executive order and many cities provide such regulation. Some of these Acts go back fourscore years. It has been repeatedly held by this Court that such laws do not violate the Due Process Clause of the Fourteenth Amendment. Perhaps the first such holding was in the Civil Rights Cases themselves, where Mr. Justice Bradley for the Court inferentially found that innkeepers, “by the laws of all the States, so far as we are aware, are bound, to the. extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them.” At 25. As we have pointed out, 32 States now have such provisions and no case has been cited to us where the attack on a state statute has been successful, either in federal or state courts. Indeed, in some cases the Due Process and Equal Protection Clause objections have been specifically discarded in this Court. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 34, n. 12 (1948). As a result.the constitutionality of such state statutes stands unquestioned. “The authority of thé Federal Government over interstate commerce does not differ,” it was held in United States v. Rock Royal Co-op., Inc., 307 U. S. 533 (1939), “in extent or character from that retained by the states over intrastate commerce.” At 569-570. See also Bowles v. Willingham, 321 U. S. 503 (1944). It is doubtful if in the long run appellant will suffer economic loss as a result of the Act. • Experience is to the contrary where discrimination is completely obliterated as to all public accommodations. But whether this be true or not is of no consequence since this Court has specifically held that the fact that a “member of the class which is regulated may suffer economic losses not shared by others... has never been a barrier” to such legislation. Bowles v. Willingham, supra, at 518. Likewise in a long line of cases this Court has rejected the claim that the prohibition of racial discrimination in public accommodations interferes with personal liberty. See District of Columbia v. John R. Thompson Co., 346 U. S. 100 (1953), and cases there cited, where we concluded that Congress had delegated law-making pov:°r to the District of Columbia “as broad as the police power of a state” which included the power to adopt “a law prohibiting discriminations against Negroes by the owners and managers of restaurants in the District of Columbia.” At 110. Neither do we find any merit in the claim that the Act is a taking of property without just compensation. The cases are to the contrary. See Legal Tender Cases, 12 Wall. 457, 551 (1870); Omnia Commercial Co. v. United States, 261 U. S. 502 (1923); United States v. Central Eureka Mining Co., 357 U. S. 155 (1958). We find no merit in the remainder of appellant’s contentions, including that of “involuntary servitude.” As'* we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common-law innkeeper rule which long predated the Thirteenth Amendment.' It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights _ Cases is to the contrary as we have seen, it having noted with approval the laws of “all the States” prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way “akin to African slavery.” Butler v. Perry, 240 U. S. 328, 332 (1916). We, therefore, conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution, as interpreted by this Court for 140 years. It may be argued that Congress could have pursued other methods to eliminate the obstructions it found in interstate commerce caused by racial discrimination. But this is a matter of policy that rests entirely with the Congress not with the courts. How obstructions in commerce may be removed — what means are to be employed — is within the sound and exclusive discretion of the Congress. It is subject only to one caveat — that the means chosen.by it must be reasonably adapted to the end permitted by the Constitution. We cannot say that its choice here was not so adapted. The Constitution requires no more. Affirmed. APPENDIX TO OPINION OF THE COURT. “TITLE II — INJUNCTIVE RELIEF AGAINST DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION “Sec. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. “(b) Each of the following establishments which serves the public is a place of public accommodation within the meaning of this title if its operations affect commerce, or if discrimination or segregation by it is supported by State action; “(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence 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_r_subst	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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. WELSH V. AMERICAN SURETY CO. OF NEW YORK et al. No. 13265. United States Court of Appeals ‘ Fifth Circuit. Jan. 17, 1951. H. O. Williams, San Angelo, Tex., for appellant. Dorsey B. Hardeman, San Angelo, Tex., for appellees. Before HUTCHESON, Chief Judge, and McCORD, and BORAH, Circuit Judges. BORAH, Circuit Judge. Steve Welsh sued V. O. Earnest, sheriff of Crockett County, Texas, and American Surety Company of New York, surety on the sheriff’s official bond, to recover damages for personal injuries inflicted on Welsh during the course of and following his arrest. The action was dismissed on defendants’ motion and plaintiff has appealed. The only question here is whether the District Court had jurisdiction to hear and determine the complaint. Plaintiff relied upon diversity of citizenship and the requisite amount in controversy as the basis of jurisdiction. The narrow and specific point in issue is whether at the time of the commencement of this suit plaintiff was a bona fide citizen of the State of New Mexico, within the meaning of Title 28 U.S.C.A. § 1332(a) (1). The suit was brought on March 6, 1950, and it was alleged in the complaint that plaintiff was a resident and citizen of the State of New Mexico; and that defendant Earnest was a citizen of the State of Texas; and that defendant American Surety Company of New York was a New York corporation licensed to do business and doing business in Texas. In response to the complaint the defendants filed a motion to dismiss the action on the ground that the court was without jurisdiction because plaintiff is and has been for many years a bona fide citizen of the State of Texas. The court heard evidence om the motion and in its order dismissing the complaint for want of jurisdiction found, “that although plaintiff resides in the State of New Mexico * * * it has not been established by reasonably satisfactory evidence that plaintiff intends to reside permanently in New Mexico and that the evidence of diversity of citizenship of the plaintiff and defendant, V. O. Earnest, is insufficient to establish a ground for jurisdiction * * The findings are challenged on the ground that they are against the evidence and are clearly wrong. Plaintiff had been a resident of Texas. He contends that he ended his residence and citizenship there and established residence and citizenship in New Mexico in February, 1950, less than one month prior to the institution of the action. Now, it is elementary that, to effect a change of one’s legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto ct animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains. Mitchell v. United States, 21 Wall. 350, 352, 22 L.Ed. 584; Sun Printing and Publishing Association v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027. Plaintiff’s allegation of citizenship in New Mexico was not sufficient. When challenged as here, the burden rested on him to show by a preponderance of the evidence that he was a citizen of that State. McNutt v. General Motors Acceptance Corporation, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; Town of Lantana, Florida v. Hooper, 5 Cir., 102 F.2d 118. There was evidence in the record which fairly tended to prove these facts. Plaintiff lived in California for twenty-six years. In 1946 he moved to Ozona, Texas, and in the same year he married. During the years that followed he often declared that he intended to return to California and he informed his wife that he would remain in Ozona only during the lifetime of her sick and aged father. On December 28, 1949, his father-in-law died. After finishing up a job on which he was then working plaintiff went to a Mr. Couch and told him that he was leaving but doubted if he had sufficient money to take him to California and asked Couch if he would purchase his trailer for two hundred dollars. Couch did not have the money but he advised plaintiff to go to Hobbs, New Mexico where Couch’s nephew, a contractor, would assist plaintiff in securing employment, thereby enabling him to work his way back to California. Plaintiff arrived in Hobbs, New Mexico on February 3, 1950 and on the following day he secured employment. The testimony with regard to plaintiff’s intention is illuminating. Plaintiff testified that he decided to stay in New Mexico when he secured employment and “got the second chance to go to work.” It is the testimony of the witness Couch that plaintiff told him shortly before the hearing, which was on May 26, 1950, that “he liked Hobbs so well he believed he was going to make it his home.” And according to the wife’s version, plaintiff decided, after they were there just a short while, “that he believed he would stay at Hobbs, New Mexico, and make his home there.” The witness Cade testified that plaintiff told him that he was going to file suit in San Angelo, Texas, and that he had to move out of the State of Texas in order to file this suit in the Federal Court. Declarations of intention to establish residence in a particular locality are of course to be given full and fair consideration, but like other self serving declarations may lack persuasiveness or be negatived by other declarations and inconsistent acts. To bring about a domiciliary change there must be a conjunction, of physical presence and animus manendi in the new location. The question is always one of compound fact and law, and one which the trial judge, having an opportunity to hear the testimony, and observe the witnesses, is most competent to judge of their credibility and we are not warranted in setting aside his findings and conclusions unless clearly erroneous. We are satisfied that the court did not misapprehend the testimony and that its findings as to the weight of the evidence should be left undisturbed. Accordingly, the judgment of the District Court is affirmed. Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Clarence HOLLEY, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee. No. 25196. United States Court of Appeals Fifth Circuit. June 11, 1968. Paul Johnston, Birmingham, Ala., Clarence F. Rhea, Gadsden, Ala., James L. Shores, Jr., Birmingham, Ala., for appellant. Macon L. Weaver, U. S. Atty., John R. Thomas, Asst. U. S. Atty., Birmingham, Ala., for appellee. Before BELL, AINSWORTH and GODBOLD, Circuit Judges. PER CURIAM: This is an appeal from a judgment of the district court affirming the decision of the Secretary that appellant has not established disability so as to entitle him to disability insurance benefits. 42 U.S. C.A. §§ 416(i), 423. The oral testimony of appellant revealed a serious question whether there was disability of mental, psychosomatic or psychoneurotic nature. At the conclusion of the administrative hearing the Hearing Examiner expressed uncertainty whether he should have appellant examined by a psychiatrist. He did not do so and instead relied upon minimal formal reports from a Veterans Administration hospital which themselves were not free of ambiguity about appellant’s condition. This case is within the principle of Page v. Celebrezze, 311 F.2d 757 (5th Cir. 1963): “[Wjhere credibility choices of a non-routine medical nature have a likely decisive significance, the record must afford some assurance on these factors. * * * [W]here the issue is not reasonably susceptible of presentation and determination on the basis of mere written, formal reports, some adequate steps must be taken to adapt a procedure which will enable the trier of the fact to determine the truth of the matter.” Id. at 760. The case must be reversed and remanded for further hearings before the administrative agency. As in Page, the parties should be free to supplement the present record by other evidence, and there should be a new decision on appellant’s inorganic conditions. See 311 F.2d at 763 n.7. The judgment of the district court is vacated and the case is remanded to the Secretary for further hearing not inconsistent with his opinion. . See also 20 C.F.R. § 404.927: “Conduct of Hearing. * * * The bearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. If the hearing examiner believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing examiner may adjourn the hearing or, at any time prior to the mailing of notice of the decision, reopen the hearing for the receipt of such evidence. * * * ” Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_usc2sect	2255	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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Lloyd McCOMY, Appellant, v. UNITED STATES of America, Appellee. No. 74-1946. United States Court of Appeals, Eighth Circuit. Submitted March 12, 1975. Decided April 7, 1975. Jack J. Cavanaugh, St. Louis, Mo., for appellant. Richard Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee. Before GIBSQN, Chief Judge, CLARK, Associate Justice, Retired, and LAY, Circuit Judge. Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation. PER CURIAM. The defendant Lloyd McComy entered a guilty plea to three counts of a twenty-three count indictment charging him with fraud in violation of 18 U.S.C. § 1348. He was sentenced to a total prison term of seven years to be followed by a five-year probation term and a fine of $3,000.00. He filed a § 2255 motion contending that his plea of guilty was not voluntary. The district court denied relief and he has appealed. We affirm. The thrust of petitioner’s argument, as we understand it and we are not sure we do, is that his plea is not voluntary since the bargain (i. e., the dismissal of the other twenty counts along with the promise of the three-year sentence) was not fully spread upon the record with the trial judge. The argument couched in these terms was not raised in the district court since the only alleged misrepresentation before the trial judge was as to the length of the sentence. The government contends that Rule 11, Fed.R.Crim.P., was fully complied with by the district court. The record shows the district court (a) questioned the defendant concerning his understanding of his rights, (b) advised him of the consequences of his plea, (c) asked if the defendant had been induced to enter his plea by any threats or promises, and (d) established a factual basis for the plea. The defendant urges, however, that in addition to soliciting the above information, the court must also ascertain whether a plea bargain has been made, and if so, its terms. We find no deficiency in the record in this regard. The record shows the district court was fully aware that the government intended to ask leave to dismiss twenty counts of the indictment at the time of the defendant’s sentence. In addition, the trial judge asked what was to be done with two co-defendants and the United States Attorney replied that the government intended to dismiss the charges against them. The court specifically asked the appellant whether any other promises or inducements, particularly with regard to sentencing, had been made to him and he responded with equally concise and specific negative answers. At the evi-dentiary hearing on this motion, the court listened to the testimony of the defendant, the defendant’s wife, his attorney at the time the plea was entered and his attorney’s associate.. On the basis of their testimony, the court concluded that no promise as to the length of sentence was ever made. We are bound by this finding unless we can say that it was clearly erroneous and the record does not support this. Therefore, we find to the extent that any “plea bargain” had been made, its terms including the dismissal of the remaining twenty counts of the indictment and the dismissal of charges against the two co-defendants, were fully disclosed in open court. Judgment affirmed. . In United States v. Gallington, 488 F.2d 637 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974), this court observed: Plea bargaining is susceptible to abuse. Its proper use, however, has been tacitly approved by the Supreme Court, this Court and many study commissions that have reviewed the problem. While a recent report has recommended that plea bargaining be abolished by 1978, we are not prepared to adopt that recommendation. We caution, however, that if plea bargaining is to be practiced, the requirements of Rule 11, as explicated by the Supreme Court in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), must be followed. Furthermore, the following safeguards must also be implemented: * * * * * * (2) Judges are to require the agreement to be disclosed in open court at the time the plea is offered and require that the reasons for reaching the agreement be set forth in detail. 488 F.2d at 640 (footnotes omitted). . Whenever the United States “bargains” to dismiss other counts of the indictment in exchange for a plea of guilty to one or more counts, this of course should be spread on the record at the time of the guilty plea. When this appears, it is essential that the trial judge determine that the guilty plea independently rests on a factual basis and is not simply induced by the government’s promise to dismiss other counts. . The following colloquy took place between the court and the defendant: THE COURT: And you understand, do you, the charges to which you have pleaded “Guilty” and which I have gone over in detail here? MR. McCOMY: Yes, sir. THE COURT: The range of penalties for these offenses could be a fine of $1,000.00 or five years’ imprisonment on Count I; a fine of $1,000.00 and imprisonment of five years on Count II; a fine of $1,000.00 and imprisonment for five years on Count III; or a total of $3,000.00 and fifteen years, or some combination of it. That’s the maximum. Do you understand that? MR. McCOMY: Yes, Your Honor. THE COURT: Have any threats or promises been made to induce you to plead “Guilty”? MR. McCOMY: No, sir. THE COURT: You understand, do you, that I have the sole responsibility for imposing sentence in the event a sentence is imposed, and I have not promised Mr. Daly or Mr. Adelman or anybody else, and particularly you, anything in regard to this case? MR. McCOMY: I understand, Your Honor. THE COURT: I do not know what sentence you will receive until such time as a pre-sentence report is given to me. Do you think there is any understanding, or have any predictions been made to you concerning — -either by Mr. Daly or by anybody else either representing themselves to be from the Government or being from the Government, as to the sentence you will receive? MR. McCOMY: No, sir. 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 28? Answer with a number. Answer:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. CHRISTENSEN et al. v. HARRIS COUNTY et al. No. 98-1167. Argued February 23, 2000 Decided May 1, 2000 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connok, Kennedy, and Souter, JJ., joined, and in which Soalza, J., joined except as to Part III. Souter, J., filed a concurring opinion, post, p. 589. Scaiza, J., filed an opinion concurring in part and concurring in the judgment, post, p. 589. Stevens, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 592. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 596. Michael T. Leibig argued the cause for petitioners. With him on the briefs were Richard H. Cobb and Murray E. Malakoff. ■ Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Waxman, Deputy Solicitor General Kneedler, Jonathan E. Nuechterlein, Allen H. Feldman, and Edward D. Sieger. Michael P Fleming argued the cause for respondents. With him on the brief were Michael A. Stafford, Bruce S, Powers, and William John Bux Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Deborah Greenfield, James B. Coppess, and Laurence Gold; for the International Association of Fire Fighters by Thomas A. Woodley; and for the National Association of Police Organizations by Stephen R. McSpadden. Jeffrey A Hollingsworth filed a brief for Spokane Valley Fire Protection District No. 1 as amicus curiae urging affirmance. Justice Thomas delivered the opinion of the Court. Under the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. (1994 ed. and Supp. Ill), States and their political subdivisions may compensate their employees for overtime by granting them compensatory time or “comp time,” which entitles them to take time off work with full pay. §207(o). If the employees do not use their accumulated compensatory time, the employer is obligated to pay cash compensation under certain circumstances. §§ 207(o)(3)-(4). Fearing the fiscal consequences of having to pay for accrued compensatory time, Harris County adopted a policy requiring its employees to schedule time off in order to reduce the amount of accrued compensatory time. Employees of the Harris County Sheriff’s Department sued, claiming that the FLSA prohibits such a policy. The Court of Appeals rejected their claim. Finding that nothing in the FLSA or its implementing regulations prohibits an employer from compelling the use of compensatory time, we affirm. I A The FLSA generally provides that hourly employees who work in excess of 40 hours per week must be compensated for the excess hours at a rate not less than 114 times their regular hourly wage. § 207(a)(1). Although this requirement did not initially apply to public-sector employers, Congress amended the FLSA to subject States and their political subdivisions to its constraints, at first on a limited basis, see Fair Labor Standards Amendments of 1966, Pub. L. 89-601, § 102(b), 80 Stat. 831 (extending the FLSA to certain categories of state and local employees), and then more broadly, see Fair Labor Standards Amendments of 1974, Pub. L. 93-259, §§ 6(a)(l)-(2), 88 Stat. 58-59 (extending the FLSA to all state and local employees, save elected officials and their staffs). States and their political subdivisions, however, did not feel the foil force of this latter extension until our decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), which overruled our holding in National League of Cities v. Usery, 426 U. S. 833 (1976), that the FLSA could not constitutionally restrain traditional governmental functions. In the months following Garcia, Congress acted to mitigate the effects of applying the FLSA to States and their political subdivisions, passing the Fair Labor Standards Amendments of 1985, Pub. L. 99-150, 99 Stat. 787. See generally Moreau v. Klevenhagen, 508 U. S. 22, 26 (1993). Those amendments permit States and their political subdivisions to compensate employees for overtime by granting them compensatory time at a rate of 114 hours for every hour worked. See 29 U. S. C. § 207(o)(l). To provide this form of compensation, the employer must arrive at an agreement or understanding with employees that compensatory time will be granted instead of cash compensation. §207(o)(2); 29 CFR §553.23 (1999). The FLSA expressly regulates some aspects of accrual and preservation of compensatory time. For example, the FLSA provides that an employer must honor an employee’s request to use compensatory time within a “reasonable period” of time following the request, so long as the use of the compensatory time would not “unduly disrupt” the employer’s operations. §2Q7(o)(5); 29 CFR §553.25 (1999). The FLSA also caps the number of compensatory time hours that an employee may accrue. After an employee reaches that maximum, the employer must pay cash compensation for additional overtime hours worked. §207(o)(3)(A). In addition, the FLSA permits the employer at any time to cancel or “cash out” accrued compensatory time hours by paying the employee cash compensation for unused compensatory time. § 207(o)(3)(B); 29 CFR § 553.26(a) (1999). And the FLSA entitles the employee to cash payment for any accrued compensatory time remaining upon the termination of employment. § 207(o)(4). B Petitioners are 127 deputy sheriffs employed by respondents Harris County, Texas, and its sheriff, Tommy B. Thomas (collectively, Harris County). It is undisputed that each of the petitioners individually agreed to accept compensatory time, in lieu of cash, as compensation for overtime. As petitioners accumulated compensatory time, Harris County became concerned that it lacked the resources to pay monetary compensation to employees who worked overtime after reaching the statutory cap on compensatory time accrual and to employees who left their jobs with sizable reserves of accrued time. As a result, the county began looking for a way to reduce accumulated compensatory time. It wrote to the United States Department of Labor’s Wage and Hour Division, asking “whether the Sheriff may schedule non-exempt employees to use or take compensatory time.” Brief for Petitioners 18-19. The Acting Administrator of the Division replied: “[I]t is our position that a public employer may schedule its nonexempt employees to use their accrued FLSA compensatory time as directed if the prior agreement specifically provides such a provision .... “Absent such an agreement, it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time.” Opinion Letter from Dept, of Labor, Wage and Hour Div. (Sept. 14, 1992), 1992 WL 845100 (Opinion Letter). After receiving the letter, Harris County implemented a policy under which the employees’ supervisor sets a .maximum number of compensatory hours that may be accumulated. When an employee’s stock of hours approaches that maximum, the employee is advised of the maximum and is asked to take steps to reduce accumulated compensatory time. If the employee does not do so voluntarily, a supervisor may order the employee to use his compensatory time at specified times. Petitioners sued, claiming that the county’s policy violates the FLSA because §207(o)(5) — which requires that an employer reasonably accommodate employee requests to use compensatory time — provides the exclusive means of utilizing accrued time in the absence of an agreement or understanding permitting some other method. The District Court agreed, granting summary judgment for petitioners and entering a declaratory judgment that the county’s policy violated the FLSA. Moreau v. Harris County, 945 F. Supp. 1067 (SD Tex. 1996). The Court of Appeals for the Fifth Circuit reversed, holding that the FLSA did not speak to the issue and thus did not prohibit the county from implementing its compensatory time policy. Moreau v. Harris County, 158 F. 3d 241 (1998). Judge Dennis concurred in part and dissented in part, concluding that the employer could not compel the employee to use compensatory time unless the employee agreed to such an arrangement in advance. Id., at 247-251. We granted certiorari because the Courts of Appeals are divided on the issue. 528 U. S. 926 (1999). II Both parties, and the United States as amicus curiae, concede that nothing in the FLSA expressly prohibits a State or subdivision thereof from compelling employees to utilize accrued compensatory time. Petitioners and the United States, however, contend that the FLSA implicitly prohibits such a practice in the absence of an agreement or understanding authorizing compelled use. Title 29 U. S. C. § 207(o)(5) provides: “An employee ... “(A) who has accrued compensatory time off... , and “(B) who has requested the use of such compensatory time, “shall be permitted by the employee’s employer to use such time within a reasonable period after making the request if the use of the compensatory time does not unduly disrupt the operations of the public agency.” Petitioners and the United States rely upon the canon ex-pressio unius est exclusio alterius, contending that the express grant of control to employees to use compensatory time, subject to the limitation regarding undue disruptions of workplace operations, implies that all other methods of spending compensatory time are precluded. We find this reading unpersuasive. We accept the proposition that “[w]hen a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.” Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270 (1872). But that canon does not resolve this case in petitioners’ favor. The “thing to be done” as defined by §207(o)(5) is not the expenditure of compensatory time, as petitioners would have it. Instead, § 207(o)(5) is more properly read as a minimal guarantee that an employee will be able to make some use of compensatory time when he requests to use it. As such, the proper expressio unius inference is that an employer may not, at least in the absence of an agreement, deny an employee’s request to use compensatory time for a reason other than that provided in § 207(o)(5). The canon’s application simply does not prohibit an employer from telling an employee to take the benefits of compensatory time by scheduling time off work with full pay. In other words, viewed in the context of the overall statutory scheme, §207(o)(5) is better read not as setting forth the exclusive method by which compensatory time can be used, but as setting up a safeguard to ensure that an employee will receive timely compensation for working overtime. Section 207(o)(5) guarantees that, at the very minimum, an employee will get to use his compensatory time (i. e., take time off work with full pay) unless doing so would disrupt the employer’s operations. And it is precisely this concern over ensuring that employees can timely “liquidate” compensatory time that the Secretary of Labor identified in her own regulations governing §207(o)(5): “Compensatory time cannot be used as a means to avoid statutory overtime compensation. An employee has the right to use compensatory time earned and must not be coerced to accept more compensatory time than an employer can realistically and in good faith expect to be able to grant within a reasonable period of his or her making a request for use of such time.” 29 CFR § 553.25(b) (1999). This reading is confirmed by nearby provisions of the FLSA that reflect a similar concern for ensuring that the employee receive some timely benefit for overtime work. For example, §207(o)(3)(A) provides that workers may not accrue more than 240 or 480 hours of compensatory time, depending upon the nature of the job. See also § 207(o)(2)(B) (conditioning the employer’s ability to provide compensatory time upon the employee not accruing compensatory time in excess of the § 207(o)(3)(A) limits). Section 207(o)(3)(A) helps guarantee that employees only accrue amounts of compensatory time that they can reasonably use. After all, an employer does not need §207(o)(3)(A)’s protection; it is free at any time to reduce the number of hours accrued by exchanging them for cash payment, §2G7(o)(3)(B), or by halting the accrual of compensatory time by paying cash compensation for overtime work, 29 CFR § 553.26(a) (1999). Thus, § 207(o)(3)(A), like §207(o)(5), reflects a concern that employees receive some timely benefit in exchange for overtime work. Moreover, on petitioners’ view, the compensatory time exception enacted by Congress in the wake of Garcia would become a nullity when employees who refuse to use compensatory time reach the statutory máximums on accrual. Petitioners’ position would convert §207(o)(3)(A)’s shield into a sword, forcing employers to pay cash compensation instead of providing compensatory time to employees who work overtime. At bottom, we think the better reading of §207(o)(5) is that it imposes a restriction upon an employer’s efforts to -prohibit the use of compensatory time when employees request to do so; that provision says nothing about restricting an employer’s efforts to require employees to use compensatory time. Because the statute is silent on this issue and because Harris County’s policy is entirely compatible with § 207(o)(5), petitioners cannot, as they are required to do by 29 U. S. C. § 216(b), prove that Harris County has violated §207. Our interpretation of §207(o)(5) — one that does not prohibit employers from forcing employees to use compensatory time — finds support in two other features of the FLSA. First, employers remain free under the FLSA to decrease the number of hours that employees work. An employer may tell the employee to take off an afternoon, a day, or even an entire week. Cf. Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728, 739 (1981) (“[T]he FLSA was designed ... to ensure that each employee covered by the Act. . . would be protected from the evil of overwork . . .” (internal quotation marks and emphasis omitted)). Second, the FLSA explicitly permits an employer to cash out accumulated compensatory time by paying the employee his regular hourly wage for each hour accrued. §207(o)(3)(B); 29 CFR § 553.27(a) (1999). Thus, under the FLSA an employer is free to require an employee to take time off work, and an employer is also free to use the money it would have paid in wages to cash out accrued compensatory time. The compelled use of compensatory time challenged in this case merely involves doing both of these steps at once. It would make little sense to interpret §207(o)(5) to make the combination of the two steps unlawful when each independently is lawful. III In an attempt to avoid the conclusion that the FLSA does not prohibit compelled use of compensatory time, petitioners and the United States contend that we should defer to the Department of Labor’s opinion letter, which takes the position that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice. Specifically, they argue that the agency opinion letter is entitled to deference under our decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). In Chevron, we held that a court must give effect to an agency’s regulation containing a reasonable interpretation of an ambiguous statute. Id., at 842-844. Here, however, we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters — like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law— do not warrant Chevron-style deference. See, e. g., Reno v. Koray, 515 U. S. 50, 61 (1995) (internal agency guideline, which is not “subject to the rigors of the Administrative Procedure] Act, including public notice and comment,” entitled only to “some deference” (internal quotation marks omitted)); EEOC v. Arabian American Oil Co., 499 U. S. 244, 256-258 (1991) (interpretative guidelines do not receive Chevron deference); Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 157 (1991) (interpretative rules and enforcement guidelines are “not entitled to the same deference as norms that derive from the exercise of the Secretary’s delegated lawmaking powers”). See generally 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5 (3d ed. 1994). Instead, interpretations contained in formats such as opinion letters are “entitled to respect” under our decision in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), but only to the extent that those interpretations have the “power to persuade,” ibid. See Arabian American Oil Co., supra, at 256-258. As explained above, we find unpersuasive the agency’s interpretation of the statute at issue in this case. Of course, the framework of deference set forth in Chevron does apply to an agency interpretation contained in a regulation. But in this case the Department of Labor’s regulation does not address the issue of compelled compensatory time. The regulation provides only that “[t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing out of compensatory time so long as these provisions are consistent with [§207(o)].” 29 CFR § 553.23(a)(2) (1999) (emphasis added). Nothing in the regulation even arguably requires that an employer’s compelled use policy must be included in an agreement. The text of the regulation itself indicates that its command is permissive, not mandatory. Seeking to overcome the regulation’s obvious meaning, the United States asserts that the agency’s opinion letter interpreting the regulation should be given deference under our decision in Auer v. Robbins, 519 U. S. 452 (1997). In Auer, we held that an agency’s interpretation of its own regulation is entitled to deference. Id., at 461. See also Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945). But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous — it is plainly permissive. To defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation. Because the regulation is not ambiguous on the issue of compelled compensatory time, Auer deference is unwarranted. * * * As we have noted, no relevant statutory provision expressly or implicitly prohibits Harris County from pursuing its policy of forcing employees to utilize their compensatory time. In its opinion letter siding with the petitioners, the Department of Labor opined that "it is our position that neither the statute nor the regulations permit an employer to require an employee to use accrued compensatory time.” Opinion Letter (emphasis added). But this view is exactly backwards. Unless the FLSA prohibits respondents from adopting its policy, petitioners cannot show that Harris County has violated the FLSA. And the FLSA contains no such prohibition. The judgment of the Court of Appeals is affirmed. It is so ordered. Such an agreement or understanding need not be formally reached and memorialized in writing, but instead can be arrived at informally, such as when an employee works overtime knowing that the employer rewards overtime with compensatory time. See 29 CFR § 553.23(c)(1) (1999). Compare, e. g., Collins v. Lobdell, 188 F. 3d 1124, 1129-1130 (CA9 1999) (upholding employer’s policy compelling compensatory time use), with Heaton v. Moore, 43 F. 3d 1176, 1180-1181 (CA8 1994) (striking down policy compelling compensatory time use), cert. denied sub nom. Schriro v. Heaton, 515 U. S. 1104 (1995). We granted certiorari on the question “‘[w]hether a public agency governed by the compensatory time provisions of the Fair Labor Standards Act of 1938, 29 U. S. C. §207(o), may, absent a preexisting agreement, require its employees to use accrued compensatory time?’ ” 528 U. S. 926, 927 (1999). As such, we decide this case on the assumption that no agreement or understanding exists between the employer and employees on the issue of compelled use of compensatory time. Justice Stevens asserts that the parties never make this argument. See post, at 593, n. 1 (dissenting opinion). Although the United States and petitioners fail to make their arguments in Latin, we believe a fair reading of the briefs reveals reliance upon the expressio unius canon. See Brief for United States as Amieus Curiae 16 (“Congress . . . identified only one circumstance in which an employer may exercise some measure of control: when an employee requests the use of compensatory time, the employer must allow such use within a reasonable period of time except where the use would ‘unduly disrupt’ the employer’s operations. 29 U. S. C. 207(o)(5). If Congress had intended for employers to exercise unilateral control over the use of compensatory time in other respects as well, it presumably would have so provided”); Reply Brief for Petitioners 4-6 (contending that the FLSA explicitly provides methods for reducing compensatory time and thus other means may not be used). Justice Stevens does not dispute this argument. In fact, he expressly endorses half of it. See post, at 594, 595 (employer free to cash out compensatory time). Instead, Justice Stevens claims that we “stumblfe]” by failing to identify “the relevant general rule” that employees have “a statutory right to compensation for overtime work payable in cash.” Post, at 592. We fail to do so only because the general rule is not relevant to this case. Both parties to this case agreed that compensatory time would be provided in lieu of cash and thus § 207(a)’s general requirement of cash compensation is supplanted. Petitioners and the United States do assert that the requirement of cash compensation is relevant by analogy. They claim that an employer cannot compel compensatory time use because compensatory time should be treated like employee cash in the bank — that is, under the exclusive control of the employee. But this analogy is wholly inapt under the very terms of the FLSA. The FLSA grants significant control to the employer over accrued compensatory time. For example, the employer is free to buy out compensatory time at any time by providing cash compensation. §207(o)(3)(B); 29 CFR ' § 553.27(a) (1999). Additionally, an employer is free to deny any request to use compensatory time when such use would unduly disrupt the employer’s operations. §207(o)(5)(B); 29 CFR § 553.25(d) (1999). The cash analogy is therefore directly undermined by unambiguous provisions of the statute. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. HIIBEL v. SIXTH JUDICIAL DISTRICT COURT OF NEVADA, HUMBOLDT COUNTY, et al. No. 03-5554. Argued Miarch 22, 2004 — Decided June 21, 2004 Robert E. Dolan argued the cause for petitioner. With him on the briefs were James R Logan, Jr., and Harriet E. Cummings. Conrad Hafen, Senior Deputy Attorney General of Nevada, argued the cause for respondents. With him on the brief were Brian Sandoval, Attorney General, and David Allison. Sri Srinivasan argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General Wray, Deputy Solicitor General Dreeben, and Joel M. Gershowitz. Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Steven R. Shapiro, Lawrence S. Lustberg, and Mark A. Berman; for the Cato Institute by Timothy Lynch and M. Christine Klein; for the National Law Center on Homelessness & Poverty et al. by Carter G. Phillips, Edward R. McNicholas, and Rebecca K. Troth; and for John Gilmore by James P. Harrison. Briefs of amici curiae urging affirmance were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations by Joel D. Bertoc-chi and Philip Allen Lacovara. Briefs of amici curiae were filed for the Electronic Frontier Foundation by Robert Weisberg; for the Electronic Privacy Information Center et al. by Marc Rotenberg and David L. Sobel; and for PrivacyActivism et al. by William M. Simpich. Justice Kennedy delivered the opinion of the Court. The petitioner was arrested and convicted for refusing to identify himself during a stop allowed by Terry v. Ohio, 392 U. S. 1 (1968). He challenges his conviction under the Fourth and Fifth- Amendments to the United States Constitution, applicable to the States through the Fourteenth Amendment. I The sheriff’s department in Humboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop. The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had “any identification on [him],” which we understand as a request to produce a driver’s license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer responded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer’s request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: The officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest. We now know that the. man arrested on Grass Valley Road is Larry Dudley Hiibel. Hiibel was charged with “willfully resisting], delaying] or obstructing] a public officer in discharging or attempting to discharge any legal duty of his office” in violation of Nev. Rev. Stat. (NRS) § 199.280 (2003). The government reasoned that Hiibel had obstructed the officer in carrying out his duties under § 171.123, a Nevada statute that defines the legal rights and duties of a police officer in the context of an investigative stop. Section 171.123 provides in relevant part: “1. Any peace officer may detain any person whom the officer encounters under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime. “3. The officer may detain the person pursuant to this section only to ascertain his identity and the suspicious circumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer.” Hiibel was tried in the Justice Court of Union Township. The court agreed that Hiibel’s refusal to identify himself as required by §171.123 “obstructed and delayed Dove as a public officer in attempting to discharge his duty” in violation of §199.280. App. 5. Hiibel was convicted and fined $250. The Sixth Judicial District Court affirmed, rejecting Hiibel’s argument that the application of § 171.123 to his case violated the Fourth and Fifth Amendments. On review the Supreme Court of Nevada rejected the Fourth Amendment challenge in a divided opinion. 118 Nev. 868, 59 P. 3d 1201 (2002). Hiibel petitioned for rehearing, seeking explicit resolution of his Fifth Amendment challenge. The petition was denied without opinion. We granted certiorari. 540 U. S. 965 (2003). II NRS § 171.123(3) is an enactment sometimes referred to as a “stop and identify” statute. See Ala. Code §15-5-30 (West 2003); Ark. Code Ann. § 5-71-213(a)(1) (2004); Colo. Rev. Stat. §16-3-103(1) (2003); Del. Code Ann., Tit. 11, §§ 1902(a), 1321(6) (2003); Fla. Stat. §856.021(2) (2003); Ga. Code Ann. §16-11-36(b) (2003); Ill. Comp. Stat., ch. 725, §5/107-14 (2004); Kan. Stat. Ann. §22-2402(1) (2003); La. Code Crim. Proc. Ann., Art. 215.1(A) (West 2004); Mo. Rev. Stat. §84.710(2) (2003); Mont. Code Ann. § 46-5-401(2)(a) (2003); Neb. Rev. Stat. § 29-829 (2003); N. H. Rev. Stat. Ann. §§ 594:2, 644:6 (Lexis 2003); N. M. Stat. Ann. §30-22-3 (2004); N. Y. Crim. Proc. Law §140.50(1) (West 2004); N. D. Cent. Code §29-29-21 (2003); R. I. Gen. Laws § 12-7-1 (2003); Utah Code Ann. §77-7-15 (2003); Vt. Stat. Ann., Tit. 24, §1983 (Supp. 2003); Wis. Stat. § 968.24 (2003). See also Note, Stop and Identify Statutes: A New Form of an Inadequate Solution to an Old Problem, 12 Rutgers L. J. 585 (1981); Note, Stop-and-Identify Statutes After Kolender v. Lawson: Exploring the Fourth and Fifth Amendment Issues, 69 Iowa L. Rev. 1057 (1984). Stop and identify statutes often combine elements of traditional vagrancy laws with provisions intended to regulate police behavior in the course of investigatory stops. The statutes vary from State to State, but all permit an officer to ask or require a suspect to disclose his identity. A few States model their statutes on the Uniform Arrest Act, a model code that permits an officer to stop a person reasonably suspected of committing a crime and “demand of him his name, address, business abroad and whither he is going.” Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 344 (1942). Other statutes are based on the text proposed by the American Law Institute as part of the Institute’s Model Penal Code. See ALI, Model Penal Code § 250.6, Comment 4, pp. 392-393 (1980). The provision, originally designated §250.12,- provides that a person who is loitering “under circumstances which justify suspicion that he may be engaged or about to engage in crime commits a violation if he refuses the request of a peace officer that he identify himself and give a reasonably credible account of the lawfulness of his conduct and purposes.” §250.12 (Tent. Draft No. 13) (1961). In some States, a suspect’s refusal to identify himself is a misdemeanor offense or civil violation; in others, it is a factor to be considered in whether the suspect has violated loitering laws. In other States, a suspect may decline to identify himself without penalty. Stop and identify statutes have their roots in early English vagrancy laws that required suspected vagrants to face arrest unless they gave “a good Account of themselves,” 15 Geo. 2, ch. 5, §2 (1744), a power that itself reflected common-law rights of private persons to “arrest any suspicious night-walker, and detain him till he give a good account of himself....” 2 W. Hawkins, Pleas of the Crown, ch. 13, § 6, p. 130 (6th ed. 1787). In recent decades, the Court has found constitutional infirmity in traditional vagrancy laws. In Papachristou v. Jacksonville, 405 U. S. 156 (1972), the Court held that a traditional vagrancy law was void for vagueness. Its broad scope and imprecise terms denied proper notice to potential offenders and permitted police officers to exercise unfettered discretion in the enforcement of the law. See id., at 167-171. The Court has recognized similar constitutional limitations on the scope and operation of stop and identify statutes. In Brown v. Texas, 443 U. S. 47, 52 (1979), the Court invalidated a conviction for violating a Texas stop and identify statute on Fourth Amendment grounds. The Court ruled that the initial stop was not based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. See id., at 51-52. Absent that factual basis for detaining the defendant, the Court held, the risk of “arbitrary and abusive police practices” was too great and the stop was impermissible. Id., at 52. Four Terms later, the Court invalidated a modified stop and identify statute on vagueness grounds. See Kolender v. Lawson, 461 U. S. 352 (1983). The California law in Kolender required a suspect to give an officer “ ‘credible and reliable’ ” identification when asked to identify himself. Id., at 360. The Court held that the statute was void because it provided no standard for determining what a suspect must do to comply with it, resulting in “ ‘virtually unrestrained power to arrest and charge persons with a violation.’” Ibid, (quoting Lewis v. New Orleans, 415 U. S. 130, 135 (1974) (Powell, J., concurring in result)). The present case begins where our prior cases left off. Here there is no question that the initial stop was based on reasonable suspicion, satisfying the Fourth Amendment requirements noted in Brown. Further, the petitioner has not alleged that the statute is unconstitutionally vague, as in Ko-lender. Here the Nevada statute is narrower and more precise. The statute in Kolender had been interpreted to require a suspect to give the officer “credible and reliable” identification. In contrast, the Nevada Supreme Court has interpreted NRS § 171.123(3) to require only that a suspect disclose his name. See 118 Nev., at 875, 59 P. 3d, at 1206 (opinion of Young, C. J.) (“The suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists”). As we understand it, the statute does not require a suspect to give the officer a driver’s license or any other document. Provided that the suspect either states his name or communicates it to the officer by other means — a choice, we assume, that the suspect may make — the statute is satisfied and no violation occurs. See id., at 876-877, 59 P. 3d, at 1206-1207. Ill Hiibel argues that his conviction cannot stand because the officer’s conduct violated his Fourth Amendment rights. We disagree. Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment. “[Interrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.” INS v. Delgado, 466 U. S. 210, 216 (1984). Beginning with Terry v. Ohio, 392 U. S. 1 (1968), the Court has recognized that a law enforcement officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Delgado, supra, at 216; United States v. Brignoni-Ponce, 422 U. S. 873, 881 (1975). To ensure that the resulting seizure is constitutionally reasonable, a Terry stop must be limited. The officer’s action must be “ ‘justified at its inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.’” United States v. Sharpe, 470 U. S. 675, 682 (1985) (quoting Terry, supra, at 20). For example, the seizure cannot continue for an excessive period of time, see United States v. Place, 462 U. S. 696, 709 (1983), or resemble a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 212 (1979). Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. See United States v. Hensley, 469 U. S. 221, 229 (1985) (“[T]he ability to briefly stop [a suspect], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice”); Hayes v. Florida, 470 U. S. 811, 816 (1985) (“[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information”); Adams v. Williams, 407 U. S. 143, 146 (1972) (“A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time”). Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim. Although it is well established that an officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. See Brown, 443 U. S., at 53, n. 3. Petitioner draws our attention to statements in prior opinions that, according to him, answer the question in his favor. In Terry, Justice White stated in a concurring opinion that a person detained in an investigative stop can be questioned but is “not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.” 392 U. S., at 34. The Court cited this opinion in dicta in Berkemer v. McCarty, 468 U. S. 420, 439 (1984), a decision holding that a routine traffic stop is not a custodial stop requiring the protections of Miranda v. Arizona, 384 U. S. 436 (1966). In the course of explaining why Terry stops have not been subject to Miranda, the Court suggested reasons why Terry stops have a “nonthreatening character,” among them the fact that a suspect detained during a Terry stop “is not obliged to respond” to questions. See Berkemer, supra, at 439, 440. According to petitioner, these statements establish a right to refuse to answer questions during a Terry stop. We do not read these statements as controlling. The passages recognize that the Fourth Amendment does not impose obligations on the citizen but instead provides rights against the government. As a result, the Fourth Amendment itself cannot require a suspect to answer questions. This case concerns a different issue, however. Here, the source of the legal obligation arises from Nevada state law, not the Fourth Amendment. Further, the statutory obligation does not go beyond answering an officer’s request to disclose a name. See NRS § 171.123(3) (“Any person so detained shall identify himself, but may not be compelled to answer any other inquiry of any peace officer”). As a result, we cannot view the dicta in Berkemer or Justice White’s concurrence in Terry as answering the question whether a State' can compel a suspect to disclose his name during a Terry stop. The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.” Delaware v. Prouse, 440 U. S. 648, 654 (1979). The Nevada statute satisfies that standard. The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. On the other hand, the Nevada statute does not alter the nature of the stop itself: it does not change its duration, Place, supra, at 709, or its location, Dunaway, supra, at 212. A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures. Petitioner argues that the Nevada statute circumvents the probable-cause requirement, in effect allowing an officer to arrest a person for being suspicious. According to petitioner, this creates a risk of arbitrary police conduct that the Fourth Amendment does not permit. Brief for Petitioner 28-33. These are familiar concerns; they were central to the opinion in Papachristou, and also to the decisions limiting the operation of stop and identify statutes in Kolender and Brown. Petitioner’s concerns are met by the requirement that a Terry stop must be justified at its inception and “reasonably related in scope to the circumstances which justified” the initial stop. 392 U. S., at 20. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. The Court noted a similar limitation in Hayes, where it suggested that Terry may permit an officer to determine a suspect’s identity by compelling the suspect to submit to fingerprinting only if there is “a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime.” 470 U. S., at 817. It is clear in this case that the request for identification was “reasonably related in scope to the circumstances which justified” the stop. Terry, supra, at 20. The officer’s request was a commonsense inquiry, not an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence. The stop, the request, and the State’s requirement of a response did not contravene the guarantees of the Fourth Amendment. IV Petitioner further contends that his conviction violates the Fifth Amendment’s prohibition on compelled self-incrimination. The Fifth Amendment states that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U. S. 27, 34-38 (2000). Respondents urge us to hold that the statements NRS § 171.123(3) requires are nontestimonial, and so outside the Clause’s scope. We decline to resolve the case on that basis. “[T]o be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe v. United States, 487 U. S. 201, 210 (1988). See also Hubbell, 530 U. S., at 35. Stating one’s name may qualify as an assertion of fact relating to identity. Production of identity documents might meet the definition as well. As we noted in Hubbell, acts of production may yield testimony establishing “the existence, authenticity, and custody of items [the police seek].” Id., at 41. Even if these required actions are testimonial, however, petitioner’s challenge must fail because in this case disclosure of his name presented no reasonable danger of incrimination. The Fifth Amendment prohibits only compelled testimony that is incriminating. See Brown v. Walker, 161 U. S. 591, 598 (1896) (noting that where “the answer of the witness will not directly show his infamy, but only tend to disgrace him, he is bound to answer”). A claim of Fifth Amendment privilege must establish “ ‘reasonable ground to apprehend danger to the witness from his being compelled to answer .... [T]he danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things, — not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct.’ ” Id., at 599-600 (quoting Queen v. Boyes, 1 B. & S. 311, 330, 121 Eng. Rep. 730, 738 (Q. B. 1861) (Cockburn, C. J.)). As we stated in Kastigar v. United States, 406 U. S. 441, 445 (1972), the Fifth Amendment privilege against compulsory self-incrimination “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.” Suspects who have been granted immunity from prosecution may, therefore, be compelled to answer; with the threat of prosecution removed, there can be no reasonable belief that the evidence will be used against them. See id., at 453. In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him. Hoffman v. United States, 341 U. S. 479, 486 (1951). As best we' can tell, petitioner refused to identify himself only because he thought his name was none of the officer’s business. Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case. While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering, a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. See Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 555 (1990) (suggesting that “fact[s] the State could readily establish” may render “any testimony regarding existence or authenticity [of them] insufficiently incriminating”); cf. California v. Byers, 402 U. S. 424, 432 (1971) (opinion of Burger, C. J.). In every criminal case, it is known and must be known who has been arrested and who is being tried. Cf. Pennsylvania v. Muniz, 496 U. S. 582, 601-602 (1990) (principal opinion of Brennan, J.). Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We need not resolve those questions here. The judgment of the Nevada Supreme Court is Affirmed. Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
sc_certreason	K	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. MARSHALL, SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY v. LONBERGER No. 81-420. Argued October 5, 1982 Decided February 22, 1983 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 439. Blackmun, J., filed a dissenting opinion, post, p. 447. Stevens, J.,’filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 447. Richard David Drake, Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the briefs were William J. Brown, Attorney General, and Simon B. Karas, Dain N. De Veny, and Dennis L. Sipe, Assistant Attorneys General. John Czamecki, by appointment of the Court, 455 U. S. 917, argued the cause and filed a brief for respondent. Justice Rehnquist delivered the opinion of the Court. The issue here is whether the Due Process Clause of the Fourteenth Amendment requires the vacation of respondent’s Ohio murder conviction. The United States Court of Appeals for the Sixth Circuit, which granted respondent’s petition for a writ of habeas corpus, Lonberger v. Jago, 635 F. 2d 1189 (1980), and Lonberger v. Jago, 651 F. 2d 447 (1981), held that it did. The Court of Appeals held that respondent’s plea of guilty to a previous Illinois felony charge, offered and admitted into evidence at his Ohio murder trial, was invalid under Boykin v. Alabama, 395 U. S. 238 (1969). It went on to hold that the admission into evidence of the Illinois conviction at the Ohio trial rendered respondent’s ensuing conviction in that proceeding unconstitutional under this Court’s decision in Burgett v. Texas, 389 U. S. 109 (1967). The State claims that the Court of Appeals exceeded its authority, under our holding in Sumner v. Mata, 449 U. S. 539 (1981), in concluding that the prior Illinois conviction was invalid. It also contends that even if the Court of Appeals were warranted in so concluding, the admission of that conviction at the Ohio murder trial did not render the Ohio conviction constitutionally infirm. We granted certiorari to consider, inter alia, the interrelationship between Boykin v. Alabama, supra, and Henderson v. Morgan, 426 U. S. 637 (1976). I There is apparently no dispute with respect to the operative facts which led to respondent’s indictment and conviction for the murder of Charita Lanier in Toledo, Ohio, on the evening of January 29, 1975. Lanier was brutally murdered in the living room of her home during that evening; blood stains led from the living room to the kitchen, where the victim’s partially clothed body was found in a freezer. An autopsy revealed that the victim bled to death after her throat had been slashed, and a bent, blood-stained knife found near the scene of the crime was identified as the murder weapon. The victim’s clothing was torn and sperm was detected in her vaginal canal. The morning after the murder, the victim’s children told police that respondent, Robert Lonberger, had been at their home the previous evening. After the children had been sent to their upstairs bedroom, they heard their mother scream. When there was no response to his questions, the older child left his bedroom and went downstairs. The lights were out and when the child attempted to turn them on respondent grabbed his hand; he ordered the child back to bed. A pack of cigarettes of respondent’s brand was found in the house and blood-stained articles of clothing were discovered in his possession. Respondent was indicted by a state grand jury on two counts of “aggravated murder.” The first count charged that respondent had murdered Lanier with “prior calculation and design,” in violation of Ohio Rev. Code Ann. § 2903.01(A) (1975). The second count charged respondent with murder while committing rape, in violation of Ohio Rev. Code Ann. § 2903.01(B) (1975). Both counts of aggravated murder included a “specification,” described below, in which the prosecution alleged that respondent previously had been convicted of an “offense of which the gist was the purposeful killing of or attempt to kill another.” Ohio Rev. Code Ann. § 2929.04(A)(5) (1975). Respondent pleaded not guilty to the charges, and the State sought at trial to prove the specification of prior conviction for attempt to kill by introducing the record of a conviction of respondent in the Circuit Court of Cook County, Ill. It is the introduction of this conviction into evidence in the Ohio murder trial which has been the focus of constitutional objection on the part of respondent since that time, and upon which the Court of Appeals for the Sixth Circuit based its conclusion that respondent's conviction was constitutionally infirm. Because of its central role in this litigation, we find it desirable to describe in some detail the evidence before the Ohio court relating to this prior conviction. It is fair to say that from the time the State first offered the record of the Illinois conviction until the present time, the opposing parties have never agreed as to the historical facts surrounding the acceptance of respondent’s plea of guilty to an indictment returned by a grand jury in the Circuit Court of Cook County, Ill., some three years before he was tried on the Ohio murder charge. The State offered in evidence at the Ohio trial a copy of the grand jury indictment forming the basis for the Illinois charge, a certified copy of an Illinois record called a “conviction statement,” and the transcript of a hearing in the Circuit Court of Cook County occurring at the time respondent pleaded guilty. These documents show that respondent was indicted by the Cook County grand jury in May 1971 on four counts: aggravated battery against Dorothy Maxwell, aggravated battery with a deadly weapon against Dorothy Maxwell, intentionally and knowingly attempting to kill Dorothy Maxwell by cutting her with a knife, and aggravated battery against Wendtian Maxwell with a deadly weapon. The “conviction statement,” prepared and authenticated by the Circuit Court of Cook County, recited in pertinent part that respondent was indicted for “AGGRAVATED BATTERY, ETC.,” that on March 10, 1972, respondent withdrew an earlier plea of not guilty and entered a plea of guilty, and that after the court “fully explained to the Defendant. . . before the entry of said PLEA OF GUILTY, the consequences of entering such PLEA OF GUILTY, the said Defendant still persisted in his PLEA OF GUILTY in manner and form as charged in the indictment in this cause.” App. 5. The third record offered in evidence in the Ohio proceedings is the transcript of the colloquy at the time of sentencing in the Circuit Court of Cook County, Ill., id., at 6-15. It contains the following relevant exchanges at a time when the sentencing judge, respondent, respondent’s attorney, and the prosecuting attorney were shown to be present in open court: “THE COURT: In other words, you are pleading guilty, that you did on August 25, 1968, commit the offense of aggravated battery on one Dorothy Maxwell, and that you did on the same date attempt on Dorothy Maxwell, with a knife, is that correct? “THE DEFENDANT: Yes, sir. “THE COURT: And you did on the same date commit the offense of aggravated battery on one Wendtian Maxwell, is that correct? “That is what you are pleading to, sir? “THE DEFENDANT: Yes, sir. “THE COURT: And understand by pleading guilty to this indictment you are waiving your right to a trial by this Court or trial by this Court and a jury? “THE DEFENDANT: Yes. “THE COURT: Understand by pleading guilty I could sentence you from one to ten on the aggravated battery, and attempt one to twenty. So, I could sentence you to the penitentiary for a maximum of from one to forty years. “Understand that? “THE DEFENDANT: Yes, sir. “THE COURT: What do you wish to tell me insofar as stipulation and as far as facts concerned? “MR. RANDALL [prosecuting attorney]: Let it be stipulated by and between the parties, Indictment 71-1554, it is both sufficient in law and in fact to sustain the charges contained therein, to sustain a finding of guilty on the charges involving Robert Lonberger. . . . “MR. XINOS [respondent’s attorney]: So stipulated.” Before respondent’s trial on the aggravated murder charges, the Ohio trial court conducted a hearing in limine to determine whether respondent’s guilty plea to the Illinois attempted murder charge was voluntary. The Illinois records were offered, and respondent took the stand and submitted himself to direct and cross-examination primarily as to his recollection of the Illinois proceedings which had taken place three years earlier. At the conclusion of this hearing, the trial court made the following findings: “The Court finds on the evidence presented that the defendant is an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel in Illinois. On review of the certified copy of the Illinois proceedings and a transcript of the plea of guilty, the Court finds that every effort was taken to safeguard and to protect the constitutional rights of the defendant. Therefore, the Court finds that the defendant intelligently and voluntarily entered his plea of guilty in the Illinois court.” Id., at 99-100. Evidence of respondent’s Illinois conviction was admitted at his Ohio trial, subject to an instruction that it be considered only in connection with the specification, and not as probative of guilt on the underlying murder count. The jury returned a verdict of guilty on the second count of aggravated murder, one including the specification of the prior charge of attempted murder; after a sentencing hearing in accordance with Ohio law, the trial court imposed a sentence of death. Respondent’s appeal to the Ohio Court of Appeals was partially successful; that court found as a matter of state law that the jury’s finding that respondent had not only murdered Charita Lanier, but raped her as well, did not satisfy the Ohio rule relating to proof of crime by circumstantial evidence. App. to Pet. for Cert. A-38. It did uphold the jury finding that respondent was guilty of the murder of Lanier, and that the specification based on the prior Illinois conviction was adequately proved. It reversed the judgment imposing a death penalty, and directed imposition of a sentence based solely on the conviction of murder. With respect to the admissibility and evidence of the prior Illinois conviction, the Ohio Court of Appeals said: “The transcript from the Cook County Circuit Court proceedings at which appellant changed his plea to guilty indicated that he was represented by competent counsel. When questioned by the court, appellant answered affirmatively that he was pleading guilty to ‘the offense of aggravated battery on one Dorothy Maxwell, ... attempt on Dorothy Maxwell, with a knife . . . [and] the offense of aggravated battery on Wendtian Maxwell. . . .’ Appellant further affirmed that he understood that he was waiving his right to trial and to confront witnesses, that he understood the penalties that could be imposed, that he was motivated to plead guilty by an offer of a reduced sentence, and that he had not otherwise been threatened or promised anything. Through his counsel, appellant stipulated that there were sufficient facts to sustain the charges contained in the indictment. We find from the record of this proceeding and from the record of the pre-trial hearing in the instant case, that the trial court did not err in ruling that appellant’s guilty plea was voluntarily and knowingly made and that the evidence of the prior conviction should be submitted to the jury.” Id., at A-42. I — I t-H It was the record of these proceedings in the Ohio state courts that formed the basis of respondent’s application for federal habeas in the United States District Court for the Northern District of Ohio. The District Court denied relief, finding that “from a review of the record, this Court is satisfied that an ordinary person would have understood the nature of the charges to which petitioner was pleading guilty.” Id., at A-31. The Court of Appeals for the Sixth Circuit reversed the judgment of the District Court, and ordered that a writ of habeas corpus issue. Lonberger v. Jago, 635 F. 2d 1189 (1980). We granted certiorari, vacated the judgment of the Court of Appeals, and remanded for reconsideration in the light of Sumner v. Mata, 449 U. S. 539 (1981). Marshall v. Lonberger, 451 U. S. 902 (1981). On remand the Court of Appeals adhered to its previous decision. Lonberger v. Jago, 651F. 2d 447 (1981). We again granted certiorari, 454 U. S. 1141 (1982), and we now reverse the judgment of the Court of Appeals. The Court of Appeals, referring to its earlier opinion, stated: “The basis for our judgment was that Lonberger’s 1972 guilty plea to attempted murder was not demonstrably an intelligent one, and was therefore invalid under federal constitutional standards. This conclusion is directly contrary to the conclusions of both of the Ohio courts that considered the question of the validity of Lonberger’s 1972 plea. We now expressly hold that these factual determinations by the Ohio courts are not fairly supported by the records that were before them. This we are empowered to do by 28 U. S. C. § 2254(d)(8). Sumner v. Mata, supra, requires that federal courts state their rationales for exercise of this power. “The basis for our disagreement with the factual determinations of the state courts can be briefly stated. The question of an effective waiver of a federal constitutional right is governed by federal standards. Boykin v. Alabama, supra, 395 U. S. at 243 .... A guilty plea, which works as a waiver of numerous constitutional rights, cannot be truly voluntary if the defendant ‘has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.’ Henderson v. Morgan, 426 U. S. 637, 645 n. 13 . . . (1976). Accord, Smith v. O’Grady, 312 U. S. 329, 334 . ... (1941). “The transcript of Lonberger’s 1972 plea is inadequate to show that Lonberger was aware that he was pleading guilty to a charge of attempted murder.” 651 F. 2d, at 449 (footnote omitted). We entirely agree with the Court of Appeals for the Sixth Circuit that the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law, Henderson v. Morgan, 426 U. S. 637 (1976); Boykin v. Alabama, 395 U. S. 238 (1969), and not a question of fact subject to the requirements of 28 U. S. C. § 2254(d). But the questions of historical fact which have dogged this case from its inception — what the Illinois records show with respect to respondent’s 1972 guilty plea, what other inferences regarding those historical facts the Court of Appeals for the Sixth Circuit could properly draw, and related questions — are obviously questions of “fact” governed by the provisions of § 2254(d). Section 2254(d) establishes a presumption of correctness for “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia. ...” One of the eight exceptions to this presumption of correctness, and the one relied upon by the Court of Appeals in this case, is where the federal habeas court, reviewing the state-court record offered to support the factual finding, “on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.” 28 U. S. C. §2254(d)(8). In its treatment of the state courts’ factual findings, the Court of Appeals failed in at least one major respect to accord those determinations the “high measure of deference,” Sumner v. Mata, supra, to which they are entitled. This deference requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court’s findings lacked even “fair support” in the record. The Court of Appeals’ treatment of the issue of respondent’s credibility failed to satisfy this standard. Following a recital of the findings of the Ohio trial court, the Court of Appeals for the Sixth Circuit states that “[n]o explicit findings were made concerning Lonberger’s credibility as a witness.” 651 F. 2d, at 448. Likewise, the Court of Appeals wrote: “At the pretrial hearing, Lonberger testified that he ‘copped out to aggravated battery’ in 1972, but had no knowledge of other charges. The Ohio prosecutors attempted to discredit this testimony by introducing copies of the 1972 indictment charging Lonberger with ‘the offense of attempt.’ Lonberger denied that he had ever seen or read this indictment. The prosecutors sought to imply by their questioning of Lonberger that he must have heard of the ‘attempt’ charge either at his arraignment or in conversation with his attorneys. Lonberger testified that he had not, and the state produced no contrary evidence.” Id., at 449-450 (footnote omitted). Finally, the Court of Appeals explicitly credited Lonberger’s testimony in a footnote rejecting the State’s reliance on Henderson v. Morgan, supra. 651 F. 2d, at 450, n. 3. We are unsure whether the Court of Appeals’ reassessment of the effect of respondent’s testimony at the Ohio state trial court hearing was undertaken because of the failure of the trial court to make express findings as to respondent’s credibility, or whether the Court of Appeals for the Sixth Circuit felt that it should assess for itself the weight that such evidence should have been accorded by the state trial court. In either event, we hold that it erroneously applied the “fairly supported by the record” standard enunciated in 28 U. S. C. § 2254(d). In LaVallee v. Delle Rose, 410 U. S. 690 (1973), we dealt with a state-court hearing in which the trial judge likewise failed to make express findings as to the defendant’s credibility. We held that because it was clear under the applicable federal law that the trial court would have granted the relief sought by the defendant had it believed the defendant’s testimony, its failure to grant relief was tantamount to an express finding against the credibility of the defendant. We think the same is true in the present case. The assumption referred to in Townsend v. Sain, 372 U. S. 293, 314-315 (1963), quoted in LaVallee v. Delle Rose, supra, at 694, “that the state trier of fact applied correct standards of federal law to the facts ...” leads inevitably to a similar conclusion here. Had the Ohio trial court credited respondent’s insistence that he had only been advised of or been aware of the battery charge at the time he pleaded guilty in Illinois, the Ohio trial court would have surely refused to allow the record of the Illinois conviction in evidence to prove the specification of attempted murder. The trial court’s ruling allowing the record of conviction to be admitted in evidence in support of the specification is tantamount to a refusal to believe the testimony of respondent. The Court of Appeals’ reliance on respondent’s testimony, discussed above, and the fact that “the state produced no contrary evidence,” are quite wide of the mark for purposes of deciding whether factual findings are fairly supported by the record. Title 28 U. S. C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them. In United States v. Oregon Medical Society, 343 U. S. 326 (1952), commenting on the deference which this Court gave to the findings of a District Court on direct appeal from a judgment in a bench trial, we stated: “As was aptly stated by the New York Court of Appeals, although in a case of a rather different substantive nature: ‘Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . . How can we say the judge is wrong? We never saw the witnesses. ... To the sophistication and sagacity of the trial judge the law confides the duty of appraisal. ’ Boyd v. Boyd, 252 N. Y. 422, 429, 169 N. E. 632, 634.” Id., at 339. We greatly doubt that Congress, when it used the language “fairly supported by the record” considered “as a whole” intended to authorize broader federal review of state-court credibility determinations than are authorized in appeals within the federal system itself. While disbelief of respondent’s testimony may not form the basis for any affirmative findings by the state trial court on issues with respect to which the State bore the burden of proof, it certainly negates any inferences favorable to respondent such as those drawn by the Court of Appeals, based on his testimony before the Ohio trial court. Thus, the factual conclusions which the federal habeas courts were bound to respect in assessing respondent’s constitutional claims were the contents of the Illinois court records, the finding of the Ohio trial court that respondent was “an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel in Illinois,” supra, at 428, and the similar conclusion of the Ohio Court of Appeals, and the inferences fairly deducible from these facts. These records and findings show, with respect to the attempted murder charge, that it was one of the four counts contained in the Cook County indictment returned against respondent. The “conviction certificate” recites that at the time respondent pleaded guilty, he was duly advised by the court of the consequences of pleading guilty, and nonetheless adhered to his plea. The transcript, as appears from its face and as found by the Ohio Court of Appeals, shows that respondent answered affirmatively that he was pleading guilty, inter alia, to the offense of “attempt on Dorothy Maxwell, with a knife . . . .” Respondent’s attorney, in his presence, stipulated that the indictment was “both sufficient in law and in fact to sustain the charges contained therein, to sustain a finding of guilty on the charges involving [respondent].” Ibid. There is perhaps an arguable conflict between the recitation of the “conviction certificate” and the transcript by reason of the latter’s omission of the word “murder” after the word “attempt” in the colloquy between respondent and the court. For our purposes we assume that the transcript version, which is more favorable to respondent, was accurate. It is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received “real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” Smith v. O’Grady, 312 U. S. 329, 334 (1941), quoted in Henderson v. Morgan, 426 U. S., at 645. In Henderson v. Morgan, we went on to make the following observations: “Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Id., at 647. Applying this standard to the factual determinations arising from the state-court proceedings which were “fairly supported by the record” within the meaning of 28 U. S. C. § 2254(d), we disagree with the Court of Appeals for the Sixth Circuit in its conclusion that respondent’s plea to the Illinois charge was not “voluntary” in the constitutional meaning of that term. We think that the application of the principles enunciated in Henderson v. Morgan, supra, lead inexorably to the conclusion that the plea was voluntary. We think a person of respondent’s intelligence and experience in the criminal justice system would have understood, from the statements made at the sentencing hearing recorded in the transcript before us, that the presiding judge was inquiring whether the defendant pleaded guilty to offenses charged in the indictment against him. This is evident from the references in the proceeding by the judge to the fact the respondent was “pleading guilty to this indictment” and by respondent’s counsel’s stipulation that the indictment sustained the plea of guilty. Supra, at 427-428. Under Henderson, respondent must be presumed to have been informed, either by his lawyers or at one of the presentencing proceedings, of the charges on which he was indicted. Given this knowledge of the indictment and the fact that the indictment contained no other attempt charges, respondent could only have understood the judge’s reference to “attempt on Dorothy Maxwell, with a knife” as a reference to the indictment’s charge of attempt to kill. It follows, therefore, both that respondent’s argument that his plea of guilty was not made knowingly must fail, and that the admission in the Ohio murder trial of the conviction based on that plea deprived respondent of no federal right. Spencer v. Texas, 385 U. S. 554 (1967). The judgment of the Court of Appeals is accordingly Reversed. Both the first and the second counts of aggravated murder, and the accompanying specifications, were submitted to the jury. No verdict was returned as to the first count or the specification accompanying that charge, and neither is relevant to our decision. Under the Ohio statute, the death sentence could be imposed only for the crime of aggravated murder, Ohio Rev. Code Ann. §2929.03 (1975). Even as to aggravated murder, the prosecution was required separately to allege a specification and prove beyond a reasonable doubt the aggravating circumstance contained in the specification, §2929.03(C). If the jury found the defendant guilty of both aggravated murder and the specification, then the trial judge was required to hold a sentencing hearing where the defendant could show mitigating circumstances, §§2929.03(D) and 2929.04. If no mitigating circumstances were found, the judge was required to impose the death sentence; a mandatory life sentence applied if mitigating circumstances were shown. The likelihood that the state trial court would have reached such a conclusion is not diminished by the facts before us. The state courts found that respondent was represented by two lawyers who were competent and capable, and the record suggests that one of the two was a nationally respected public defender; either of them might well have informed respondent of the charges contained in the indictment against him. Moreover, respondent appeared in several court proceedings in connection with his attack on Dorothy Maxwell, at any one of which the indictment could have been read to him. The method by which court records from one State are to be authenticated and proved in the courts of a second State, the weight to be given those records, and the extent to which they may be impeached by later oral testimony, are all matters generally left to the laws of the States. A State “is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). The Sixth Circuit sought to distinguish Henderson on several grounds, none of which withstands analysis. First, it relied on “Lonberger’s testimony that his lawyers did not discuss the charge of ‘attempt’ with him.” This, however, requires rejection of the state courts’ necessary conclusions as to Lonberger’s testimony, which the federal habeas court was unjustified in doing. Supra, at 433-434. In addition, the Court of Appeals thought that the fact that respondent had changed lawyers following the return of the grand jury indictment somehow made it less likely that the presumption would operate. The mere fact of a change in representation, if it has any probative value, would suggest to us that it was even more likely than usual that one of the two lawyers informed respondent of the contents of the indictment. The Court of Appeals also relied on what it thought was a vague description of the attempt-to-kill offense in the indictment and the sentencing proceedings. We cannot agree with the Court of Appeals’ apparent implication that the indictment failed to provide respondent’s counsel with sufficient information to enable them to describe to him the charges he faced: indeed, counsel stipulated that the indictment was “sufficient in law and fact” to sustain the charges against respondent. Finally, the Court of Appeals thought it “questionable whether [the Henderson presumption] is proper in a case ... in which a prior conviction forms an essential element of a later crime.” Whatever may be the case otherwise, there is surely no obstacle to use of the presumption in a case such as this, when the defendant is challenging a conviction which does not have a prior conviction as an element. In Spencer, which we reaffirm, the Court upheld a conviction despite the introduction at the guilt-determination stage of trial of a defendant’s prior conviction for purposes of sentence enhancement. Central to our decision was the fact that the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules: “It has never been thought that [decisions under the Due Process Clause] establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.” 385 U. S., at 564. Applying these principles, we observed that the Texas procedural rules permitting introduction of the defendant’s prior conviction did not pose a sufficient danger of unfairness to the defendant to offend the Due Process Clause, in part because such evidence was accompanied by instructions limiting the jury’s use of the conviction to sentence enhancement. This analysis remains persuasive; as recognized in Parker v. Randolph, 442 U. S. 62, 73 (1979) (Rehnquist, j.), the “crucial assumption” underlying the system of trial by jury “is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.” Cf. Sandstrom v. Montana, 442 U. S. 510 (1979). Spencer also observed that in cases where documentary evidence is used to prove the prior crime, the evidence seldom, if ever, will be so inflammatory or “devastating,” Parker v. Randolph, supra, at 74-75, that the jury will be unable to follow its instructions. See, e. g., Bruton v. United States, 391 U. S. 123 (1968). And, of course, if the jury considers a defendant’s prior conviction only for purposes of sentence enhancement no questions of fairness arise. Justice Stevens’ dissent appears to rest on a view that the common law regarded the admission of prior convictions as grossly unfair and subject to some sort of blanket prohibition. In fact, the common law was far more ambivalent. See, e. g., Stone, Exclusion of Similar Fact Evidence: America, 51 Harv. L. Rev. 988 (1938). Alongside the general principle that prior convictions are inadmissible, despite their relevance to guilt, 1 J. Wigmore, Evidence § 194 (3d ed. 1940), the common law developed broad, vaguely defined exceptions — such as proof of intent, identity, malice, motive, and plan — whose application is left largely to the discretion of the trial judge, see Spencer v. Texas, 385 U. S., at 560-561. In short, the common law, like our decision in Spencer, implicitly recognized that any unfairness resulting from admitting prior convictions was more often than not balanced by its probative value and permitted the prosecution to introduce such evidence without demanding any particularly strong justification. Here, as in Spencer, the trial judge gave a careful and sound instruction requiring the jury to consider respondent’s prior conviction only for purposes of the specification. The extent to which the jury can and does consider limiting instructions, or for that matter any instructions, has been fully considered in cases such as Spencer, supra, Bruton, supra, Parker, supra, and Burgett v. Texas, 389 U. S. 109 (1967). The matter was put to rest for cases such as this by our decision in Spencer, supra, in which the Court quoted the remark of Justice Cardozo in Snyder v. Massachusetts, 291 U. S., at 105, that a state rule of law “does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.” Remarking on the state of the law of evidence with respect to reputation in criminal cases, the Court in Michelson v. United States, 335 U. S. 469, 486 (1948), said: “We concur in the general opinion of the courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.” If this Court was thus willing to defer to “accumulated judicial experience” at the expense of “abstract logic,” id., at 487, in a case such as Michelson which arose in the federal court system, the Due Process Clause as construed in Spencer surely cannot require a State to do more. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:

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