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songer_respond2_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Tomlinson Fort JOHNSON, Jr., Appellant, v. DUQUESNE LIGHT COMPANY, Doble Engineering Company, and Frank C. Doble, Appellees. Circuit Court of Appeals, Third Circuit. September 19, 1929. No. 4016. For opinion below, see 29 F. (2d) 784. Philip E. Siggers and Alva D. Adams, both of Washington, D. C. (Marshall A. Christy and Christy, Christy & Wharton, all of Pittsburgh, Pa., and Siggers & Adams, of Washington, D. C., of counsel), for appellant. Reed, Smith, Shaw & MeClay and Byrnes, Stebbins & Parmelee, all of Pittsburgh, Pa. (Geo. E. Stebbins, Lester G. Budlong and C. P. Byrnes, all of Pittsburgh, Pa., of counsel), for appellee. Before WOOLLEY and DAVIS, Circuit Judges, and RELLSTAB, District Judge. PER CURIAM. This suit was brought for the infringement of United States letters patent No. 1,366,078, issued to Tomlinson Fort Johnson, Jr., January 18, 1921,,for a "new and useful method of locating faulty Buspension-insulators on live-wire transmission-lines.” The defenses are invalidity and noninfringement of the patent. Claims 6 and; 8 to 31, inclusive, are in issue. The learned District Judge dismissed the bill on the grounds that: (1) The patent does not set forth a patentable invention; (2) it was anticipated; and (3) the defendant does notinfringe. The decree is affirmed, on the opinion of the District Court. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. BRESSNER RADIO, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 18, Docket 25077. United States Court of Appeals Second Circuit. Argued Nov. 13,1958. Decided May 28, 1959. Bernard Weiss, New York City, for petitioner. Meyer Rothwacks, Dept, of Justice, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson and A. F. Prescott, Dept, of Justice, Washington, D. C., on the brief), for respondent. Before HINCKS, LUMBARD and MOORE, Circuit Judges. MOORE, Circuit Judge. The taxpayer (petitioner) petitions for review by this court of a decision of the Tax Court deciding that there were deficiencies in income tax for the fiscal years ending May 31, 1948 and May 31, 1949 of $16,779.08 and $43,196.24 respectively and an overpayment of $4,-401.55 for the fiscal year ending May 31, 1950. The petition presents the question under the Internal Revenue Code of 1939 whether or in what circumstances a taxpayer who has long employed the accrual method of accounting may defer the inclusion in income of prepaid revenues on contracts to render future services over a twelve month period subsequent to the date of receipt. The Commissioner asserted a deficiency for the fiscal years ending May 31, 1948, 1949 and 1950 on the ground that “the method employed does not clearly reflect the income” of petitioner, § 41, Internal Revenue Code of 1939, 26 U.S.C.A. § 41, and demanded the inclusion of all revenues in gross income in the year of receipt in place of the taxpayer’s prorata monthly deferral. The Tax Court agreed with the Commissioner that the taxpayer’s deferral technique did not clearly reflect its income, and found the above stated deficiencies. The facts relevant to the decision are as follows. Petitioner, a New York corporation, was in the business of selling radios, television sets, air conditioners, refrigerators, washing machines and household appliances. Its books were kept on the accrual basis of accounting and its income tax returns in question were filed on that basis for the fiscal years ending May 31, 1948 through 1951. During these years petitioner sold a substantial number of television sets and in connection with the sale (undoubtedly as an inducement therefor and to meet competition) entered into a large number of written service contracts entitled “Service Contract for Television Receiver.” Petitioner thereby agreed “to service the television receiver * * * and to furnish to the purchaser all labor, replacement of parts and tubes * * * necessary to provide proper operation * * * for a period of [12 months] from the date of this contract. * * * ” The average price received per contract was between $80 and $100. Payments were made by the purchasers in installments but the contracts were sold by petitioner to a bank for cash. Petitioner’s initial cost of installation, which was covered by the contract, was approximately $19, which consisted of $7 for antenna, $10 labor and $2 clerical overhead. Television sets sold in those comparatively early years had many defects. They required a substantial number of service calls both for the set and for adjustment when new stations commenced telecasting. Petitioner’s actual experience showed that 8 to 12 service calls were made during the twelve months in which each contract was in force. Therefore, petitioner “in accordance with the method of accounting regularly employed in keeping the books of such taxpayer” (Sec. 41) allocated 25% of the service contract price to the installation cost and deferred the balance over the twelve month period of the contract. During the taxable fiscal years (1948 and 1949) the money received for the service contracts was not placed in a separate bank account and reserves were not set up on petitioner's books for expenses for servicing in subsequent years. In each of the years of its business the total service contract obligations of petitioner were as follows: Fiscal year ended No. of Contracts No. of months of obligation Months falling in: Current year Following year May 31, 1947 352 4,224 890 3,334 1948 1,248 14,976 6,585 8,391 1949 3,452 41,424 16,560 24,864 1950 6,274 75,288 32,598 42,690 1951 6,070 72,840 40,585 32,255 The actual cost per contract-month of servicing these contracts in the years ending May 31, 1948, May 31, 1949 and May 31, 1950 respectively was $9.81, $11.28, and $6.33. These facts were found in substance by the Tax Court (28 T.C. 378). Reference must be made to certain other facts which should be considered in passing upon the merits and the adequacy and accuracy of petitioner’s bookkeeping system. These findings were requested by petitioner but denied by the Tax Court as not necessary in deciding the issues but the Court stated that they were fully considered in the preparation of its report. To meet its obligation to replace parts and tubes petitioner maintained an inventory of service parts sufficient for a 60-90 days period having a value of between $10,000 and $25,000. Although no special fund was established for servicing, petitioner’s cash balances were $47,-588.98 on May 31, 1948 and $110,997.83 on May 31, 1949. Thus petitioner kept in its possession cash and inventory in excess of the amount of the service contract receipts sought to be deferred, i. e., $41,281.66 and $128,406.35 respectively. The solution of this tax problem depends upon construction of §§ 41 and 42 of the Internal Revenue Code of 1939. The primary difficulty in the case is presented by a potential conflict between these provisions. Section 41 provides that “the net income shall be computed upon the basis of the taxpayer’s annual accounting period * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer * * * ” and thus points strongly away from the transactional or across-the-year approach for determining gross and net income for tax purposes. But § 42 creates an exception. It provides that “The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section hi, any such amounts are to be properly accounted for as of a different period.” [Emphasis added.] Since the Commissioner contends that the taxpayer’s method of deferral of unearned receipts on television service contracts is not one of the “methods of accounting permitted under section 41,” the first question to be decided is the standard by which those methods which are acceptable may be identified. Section 41 further provides that “If the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect the income.” This is the only enumerated basis upon which the Commissioner may disallow a method, and the problem therefore becomes to define the standard which must be applied to decide whether the method adopted does or does not “clearly reflect” income. The Revenue Act of 1913, 38 Stat. 166 (1913) provided only for a strict cash receipts and disbursements method of accounting. With the passage of the Revenue Act of 1916, 39 Stat. 756 (1916), however, apparently in response to mounting pressure from economists and businessmen to create some coherence in the relation between accounting for income and for income taxation, the accrual basis of accounting was permitted in language which has remained virtually unchanged since that time. Sections 8(g) and 13(d), 39 Stat. 763, 771. See H.R.Rep. No. 922, 64th Cong., 1st Sess. 4 (1916); May, Accounting and the Accountant in the Administration of Income Taxation, 47 Colum.L.Rev. 377, 380-381 (1947). In United States v. Anderson, 1926, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347, the Supreme Court surveyed this legislative development and concluded that the changes of 1916 were made “to enable taxpayers to keep their books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period * * * ” (269 U.S. at page 440, 46 S.Ct. at page 134). It applied this standard to require a taxpayer on the accrual basis to accrue in advance of payment taxes imposed for the year 1916 but payable in 1917. The principle has been expressly reaffirmed as recently as Lewyt Corp. v. Commissioner, 1955, 349 U.S. 237, 242-243, 75 S.Ct. 736, 99 L.Ed. 1029. The starting point, therefore, is the standard of “scientific accounting principles” to determine whether the deferral method adopted by the taxpayer here did or did not “clearly reflect” its income. In order to prevail, petitioner need only establish that the Commissioner improperly asserts that the method it has chosen and defends did not “clearly reflect” its income. Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. This is not a case in which the taxpayer has sought to change its method of accounting and is therefore subject to the Commissioner’s “wide discretion” to reject such a change. Cf. Brown v. Helvering, 1934, 291 U.S. 193, 204, 54 S.Ct. 356, 78 L.Ed. 725. This is rather a case in which an accrual taxpayer has from the start consistently applied the accrual method of accounting. Beacon Publishing Co. v. Commissioner, 10 Cir., 1955, 218 F.2d 697, 701-702. As an accounting matter petitioner proved that the deferral of these receipts, assuming for the moment that the basis on which the deferral was computed was satisfactory, cf. Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, did clearly reflect its income. The essential argument in support of the deferral is that although the customer’s payment was received in full at the start of each year-long contract it could not be considered to be earned, until petitioner had discharged its liability to perform services under the contract. At the close of each year petitioner did take into the income of the year such portion of the total received for each contract as, in accordance with its accounting procedures, it then considered to be earned, deferring the remainder of the receipt for inclusion in the year in which its remaining liability was discharged. It is not disputed that each contract did establish a continuing liability of petitioner to perform services at the customer’s demand for one year. In United States v. Anderson, supra, the Supreme Court held that: “In a technical legal sense it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income for a given accounting period, the munitions tax here in question did not stand on any different footing than other accrued expenses appearing on appellee’s books. In the economic and bookkeeping sense with which the statute * * [was] concerned, the taxes had accrued” (269 U.S. at page 441, 46 S.Ct. at page 134). It is a necessary corollary of this “economic and bookkeeping” proposition that, until substantially “all the events” have occurred, both as to the cost and time of performance, which must occur in order to discharge the liability to perform which was given by petitioner in return for the receipt, the petitioner’s “true income” would be distorted by the inclusion of the entire receipt in its year’s revenues. Furthermore, to compel this technique for tax purposes would further distort the result, in some cases grievously. Thus, in this case it was apparent to petitioner shortly after it commenced its service business that it would sustain a loss on each contract. Its accounting technique reflected a pro-rata portion of that overall loss in each of the years of performance. Had the petitioner adopted what the Commissioner asserts would have been the only proper accounting procedure for tax purposes it would have shown a first-year taxable profit on most contracts, and a second-year loss which would have been heightened by the tax cost imposed in the first. Thus if petitioner had sold a service contract for $100 on April 1, 1948 it would have incurred expenses of $19 for installation and $19.62 for servicing for two months ($9.81 X 2). The balance of $61.38 would have been taxable income in the fiscal year of the sale and would have resulted in a tax of $23.32 (at 38%). This would have left petitioner with $38.06 to meet his service costs over the- next ten months of $98.10. We have no doubt that such a technique of reporting would be a gross distortion of petitioner’s income. The Commissioner relies on what he urges is a concept of income reporting established by the Supreme Court in construction of § 41 and its predecessors, which concept in his view supersedes customary accrual accounting rules as they relate to the time when receipts should be included in income. The proposition he urges is that sums received by a taxpayer without restriction on use must be reported in the year of receipt despite the fact that as an accounting matter they cannot be considered as earned in that year because they were received in return for the taxpayer’s assumption of a liability to perform services in a subsequent year. He argues that only if such receipts are so reported will the method of accounting for tax purposes “clearly reflect the income” of an accrual basis taxpayer. He claims that this rule is an aspect of the “claim of right” doc- • trine for the existence and applicability of which he relies on a line of cases beginning with North American Oil Consolidated v. Burnet, 1932, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197, and including Brown v. Helvering, 1934, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Spring City Foundry Co. v. Commissioner, 1934, 292 U.S. 182, 54 S.Ct. 644, 78 L.Ed. 1200, and more recently Heiner v. Mellon, 1938, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337; Security Flour Mills Co. v. Commissioner, 1944, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725; United States v. Lewis, 1950, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; Healy v. Commissioner, 1953, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007; and Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. However, with the sole exception of Automobile Club of Michigan v. Commissioner, supra, not one of these cases deals on the merits with the question of the propriety of the deferral of prepaid receipts held without other restriction as to use than the liability to perform future services on demand. Therefore in order to establish his proposition the Commissioner must demonstrate that these cases nevertheless establish a standard for the definition of those methods of accounting which are acceptable under § 41 that excludes the deferral of such unearned receipts. The cases individually or the so-called “claim of right” doctrine which they may collectively embody do not establish such a •definition. To the contrary, in each of the cases cited which is relevant, the Supreme Court used as its starting point generally accepted methods of accrual accounting for earned income. In North American Oil Corp. v. Bur-net, supra, the government and the petitioner disputed the ownership of certain property, and a receiver was appointed pending a determination. In the year 1916 under the control of the receiver the property produced a profit. In 1917 the court battle was resolved in petitioner’s favor at the trial level, and the receiver consequently paid over the sums representing the profit of 1916. The oil company sought to treat this profit, which it conceded was earned income in any event, as income in the year 1916. The Commissioner asserted that the fund constituted income to the company in 1917, when it first received it under a claim of right. The company •countered with the argument that if the fund was not income to it in 1916, it could not be considered as income until 1922 when the right to retain it became final with the completion of all appellate processes. The Supreme Court dismissed the assertion that the income was taxable to the company in 1916 since it “was not required in 1916 to report as income an amount which it might never receive” (286 U.S. at page 423, 52 S.Ct. at page 615). As between the remaining years, 1917 and 1922, the Court held the income taxable in 1917. “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent” (286 U.S. at page 424, 52 S.Ct. at page 615). [Emphasis added.] It is plain that this case does not concern the question of the propriety of the deferral of unearned receipts. The petitioner asserted only that the existence of a contingency affecting its right either to receive or retain a fund which was concededly earned income should affect the year of inclusion of the income for tax purposes. The Court held only that money that was earned and held under a claim of right was includible in the year of receipt. The question presented here is very different. The petitioner asserts here that it has received a fund which it will not have earned until a subsequent tax period, and claims the right to defer its inclusion until it is earned so that it can be matched with the expenses incident to the production of the revenue in accordance with a scientific and regularly established accounting procedure. The real issue raised by the facts but not argued in the North American case from an accounting standpoint was whether a corresponding reserve to meet the contingency of the need for repayment could, if it were a sound ac> counting technique, constitute a deduction in 1917, the year of inclusion of the income. This issue was not actually presented until later; and the North American case itself cannot even be said to stand for a departure of tax accounting from sound general accounting practices. In Brown v. Helvering, supra, the issue not argued in the North American ease was presented, and the significance of the earlier holding for present purposes was clarified. The petitioner was an insurance agent which received from its principals so-called “overriding commissions” on policies that it sold. However, policies which were sold for a period in excess of a year were subject to cancellation on agreed terms and in the event of cancellation the petitioner was obliged to rebate a portion of the overriding commission it had received. Petitioner’s argument was in the alternative. First it sought to accrue as a deductible expense in the year of receipt and inclusion of the income a reserve to cover the contingent liability to return a portion of the commission. The Commissioner disallowed the reserve and was sustained by the Supreme Court on the ground that the reserve itself was improper for tax purposes because “the liability * * * arising from expected future cancellations * * was not fixed and absolute,” 291 U.S. at page 201, 54 S.Ct. at page 360, whether or not it was proper as a matter of conservative accounting procedures. The petitioner’s alternative argument is more important here. It argued that because the overriding commission was “compensation for services rendered throughout the life of the policy” it “cannot be considered as earned until the required services have been performed,” 291 U.S. at page 203, 54 S.Ct. at page 361, and therefore ought in some part to be deferred for inclusion in the income of future years. The Court disallowed the deferral on two grounds. First, the Board of Tax Appeals had concluded that there “is no proof that the overriding commissions contain any element of compensation for services to be rendered in future years,” 291 U.S. at page 204, 54 S.Ct. at page 361, and consequently there was no showing that as an accounting matter the commissions were not in fact earned as are a seller’s sales receipts despite subsequent returns. The Court’s denial of the requested deferral was thus not a departure from but rather an insistence upon sound accrual accounting for earned income. See, Rothaus, Taxation of Prepaid Income, 17 Md.L.Rev. 121, 127 (1957). Alternatively the Court found that since petitioner had itself previously uniformly treated the commissions as income in the year of receipt, its assertion of the right to defer constituted a change of accounting procedures. It held that the Commissioner “was vested with a wide discretion in deciding whether to permit or forbid a change.” 291 U.S. at page 204, 54 S.Ct. at page 361. As to this deferral issue it did not mention the “claim of right” concept or cite prior claim of right cases. Here there is no argument whatever that the prepaid receipts as to which the deferral is sought were anything but unearned, and therefore as to the first ground of the decision against deferral in Brown the case is not in point. Moreover, here there was no change either in the petitioner’s underlying method, which was concededly an accrual method, or in his treatment of receipts under service contracts, which from the start he has sought to defer. The Commissioner urges that in any event Automobile Club of Michigan v. Commissioner, supra, establishes the applicability of the so-called “claim of right” doctrine to disallow deferrals of these unearned receipts. While this was true of the decision in the Tax Court, 1953, 20 T.C. 1033, and apparently of the decision in the Court of Appeals, 6 Cir., 1956, 230 F.2d 585, 586-587, the decision of the Supreme Court was placed on the far narrower ground that the particular method of deferral adopted by the Club was unsatisfactory. “The pro rata allocation of membership dues in monthly amounts is purely artificial and bears no relation to the services which petitioner may in fact be called upon to render for the member.” 353 U.S. at page 189, 77 S.Ct. at page 712. It is apparent from the decision of the majority that at least for purposes of the decision of the case it assumed that a realistic deferral would have been permissible, and found only that no realistic deferral was made. It thus did not pass on the issue which concerns us here. The Commissioner’s treatment of the Club’s receipts on a cash basis, which followed from his claim of right analysis, was permitted only after the Court determined that the Club’s accounting method did not clearly reflect its income. Nevertheless three Justices dissented from even this limited application of the claim of right to deferrals, despite the fact that the Commissioner has been held to have a very broad discretion to select the cash basis once he has shown the taxpayer’s system to be inadequate. The majority appears to have proceeded from an assumption that accrual accounting would be acceptable tax practice. The remainder of the cases expressly relied on by the Commissioner similarly fail to establish such a departure from sound accrual accounting practice as would justify the Commissioner’s assertion that the petitioner's unearned receipts must be included in income because the method it adopted did not clearly reflect its income. Spring City Foundry Co. v. Commissioner, supra, was simply an attempt to avoid by unsound accounting the nondeductibility of debts becoming partially worthless within the tax year under § 234 of the Revenue Act of 1918, 40 Stat. 1077. The taxpayer argued that since the income in the form of an account receivable was earned in the same tax year in which the receivable became partially worthless he should be allowed to net the amounts and show as income for the year only the remaining value of the debt. The Court in accord with accounting practice held that the earned income must be reported in the year in which it was earned; and then separately held that the Revenue Act did not permit a deduction for partial worthlessness. The case did not concern the accounting treatment of unearned receipts. In Heiner v. Mellon, supra, members of a partnership formed in order to engage in the liquidation of certain enterprises, sought to delay the reporting of income earned by the companies in liquidation until the completion of the liquidation when it could be determined whether the partnership enterprise of liquidation had been profitable. There was no claim that the contested receipts were not earned income. The taxpayer simply asserted the right to delay all accounting for certain earnings beyond its annual period, and both sound accounting procedure and the annual accounting concept of the Revenue Act prevailed Over his transactional approach. Security Flour Mills Co. v. Commissioner, supra, concerned the deductibility from concededly earned income of one year of payments made in subsequent years as to which no liability had accrued in the earlier years. This was an attempt to use the transactional approach as to liabilities. The Supreme Court disallowed the deduction because the taxpayer’s accounting method was “a divided and inconsistent method of accounting not properly to be denominated either a cash or an accrual system” (321 U.S. at page 287, 64 S.Ct. at page 599). The taxpayer, who was on the accrual basis, had collected taxes from its customers in 1935. In the same year it contested its liability to pay over the amount of the tax to the government, but also took a deduction from income for an accrued tax expense. In the next year it won its dispute with the government so that in fact the taxes were not paid; but in the subsequent three years, it made rebate payments to its customers for the tax previously deducted. The Commissioner disallowed the 1935 deduction for the taxes which were not paid in 1935 or thereafter. The Board of Tax Appeals disallowed a portion of the Commissioner’s result, computing the deficiency in 1935 by allowing the taxpayer to carry back to 1935 as a deduction the sums actually paid out to customers in 1936, 1937 and 1938. 1941, 45 B.T.A. 671. The Commissioner, but not the taxpayer, appealed from this method of determination of the liability in 1935, and the court of appeals reversed the allowance as a deduction in 1935 of the sums expended in later years. 10 Cir., 1943, 135 F.2d 165. The Supreme Court thus had before it only the hybrid calculation of the 1935 deduction, which, in accord with sound accrual accounting, it disallowed, affirming the court of appeals. This case has nevertheless been mistakenly regarded on occasion as identical in issue and resolution to such cases as Dixie Pine Products Co. v. Commissioner, 1944, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270, which have held that accrual taxpayers who refuse to pay taxes on the ground of their invalidity may not accrue and deduct the liability to pay them during the course of the dispute. See, e. g., Freeman, Accrual Accounting for Contested Items, 56 Mich.L.Rev. 727, 736 (1958). Even so regarded the case is consistent with sound accrual accounting, since, as in the Dixie Pine case, enough had happened by the time the accrual of the contested liability was sought, to render the need for ultimate payment highly unlikely and the accrual by the very person asserting non-liability at least arguably unsound. See Freeman, supra, ibid. The other cases relied on by the Commissioner we think not at all in point. Although United States v. Lewis, supra, and Healy v. Commissioner, supra, both reaffirm the familiar annual accounting rule of § 41, both dealt with cash basis taxpayers, and neither concerned any issue of the propriety of techniques of deferral under § 42. Therefore there is no basis whatever in the cited cases for the Commissioner’s broad assertion that for tax purposes concededly unearned receipts must be regarded as income in the year of receipt, and there is nothing to indicate that in construing §§41 and 42 and their predecessors the Supreme Court has generally departed from the standard of sound accounting practice in determining what methods are authorized under § 41. Absent an express congressional command, a lack of congruency between the accrual methods authorized under § 41 and sound accounting practice must arise out of a demonstrable requirement of sound administration of the revenue laws. See, e. g., Commissioner of Internal Revenue v. Phipps, 1949, 336 U.S. 410, 69 S.Ct. 616, 93 L.Ed. 771. No such need has been demonstrated in support of the Commissioner’s position, and no such congressional command has been cited. Indeed the command of § 41 is plainly to the contrary in a case such as this. The final and crucial issue in this case is whether the pro-rata monthly deferral employed by the petitioner did “clearly reflect” income, or whether, as the Commissioner finally contends, it was “purely artificial” within the meaning of the Automobile Club decision. There is nothing apparently artificial about the petitioner’s method of deferral here. Drawing on its experience with thousands of contracts it has demonstrated that it was subjected to a reasonably uniform demand for services, so that it could and did anticipate that the expenses incident to the performance which alone would entitle it to regard the sum received as earned would be distributed across the life of the contract. It therefore deferred revenues until they were earned, and thus matched them with foreseeably related expenses, which is the essential purpose of accrual accounting. United States v. Anderson, 1926, 269 U.S. 422, 46 S.Ct. 131, 70 L.Ed. 347. There are three grounds on which the Automobile Club case is distinguishable. Two of these relate to the impropriety there of deferrals of income where the amount deferred should properly have been treated as already earned even under an accrual system; and the third relates to the absence there of affirmative proof that the particular proration selected reasonably matched actual expenses with the earning of related revenues. First, from the statement of the facts in the opinion of the court of appeals, 6 Cir., 1956, 230 F.2d 585, 586-587, it appears that while the Club deferred the entire amount received as membership dues on a pro-rata monthly basis, it expended only an undefined portion of it on services such as emergency road service, rendered on the member’s demand, and spent the rest on continuing enterprises such as solution of safety and traffic problems, and promotion of certain laws favorable to motorists. Since the continuance of these enterprises and the amounts to be invested therein were largely if not entirely within the discretion of the directors of the Club, its failure to allocate a portion of the membership fee to these enterprises and to defer only that part of the fee reasonably related to the services which it assumed a continuing liability to render on demand in the subsequent year might alone have been adequate grounds for holding that the deferral employed was “purely artificial” since it bore no reasonable relation to the continuing liability actually assumed. Second, it appears from the record in the case, although it is not disclosed in the several opinions, that even the services which the Club actually did render “on demand” in the subsequent year could have been restricted or even discontinued in the Club’s discretion. Since it also appears from the opinion of the Tax Court, 1953, 20 T.C. 1033, that there was no legal requirement that the Club refund previously paid dues when a member voluntarily terminated his membership, the right to retain the dues was fixed even though the very existence of any continuing liability to perform services “on demand” may have been in the control of the Club. In this circumstance it could be said to be “artificial” for the Club to defer as “unearned” even those amounts received from its members which the Club actually allocated to the performance it thereafter chose to render “on demand” in the subsequent year. Finally, in addition to these grounds for considering the basis of the deferral improper, the Club’s pro-rata monthly allocation may have been “artificial” because of a failure of proof that the actual expenses incurred in discharging the continuing liability assumed under the contract were in fact “matched” with related earnings by an equal monthly allocation of revenue. Particularly in a northern state such as Michigan it may well be that the undertaking to perform emergency service on demand is, over a large number of contracts, an undertaking to do far more in the winter months than at any other time during the year, so that an equal monthly pro-ration of revenue would neither succeed in matching actual expenses with the revenues which they produce nor in reflecting the actual rate at which the income was earned. See Note, 67 Yale L.J. 1425, 1440 and n. 65 (1958). Whether or not accrual accounting for ordinary business purposes or for tax purposes requires more than a reasonable predictability of matching expenses with related revenues, see Freeman, Tax Accrual Accounting, 56 Mich.L.R. 727, 747 (1958), a complete failure of proof of at least a reasonable relationship between expense and revenue coupled with facts which themselves raise the inference that expenses are not reasonably constant during the year is a sufficient basis for the conclusion that the deferral adopted was “purely artificial.” Whether one or all of these grounds produced the conclusion that the Club’s monthly pro-rata allocation of revenues was “purely artificial,” the case does not govern here. In conclusion, petitioner’s regularly employed method of accounting on an accrual basis and its deferral of income so that it most closely matched the corresponding expenses clearly reflected its true income. Its method and the statistical material supporting its figures were not “purely artificial.” They bore a carefully estimated relationship to the services petitioner would be called upon to render. The record does not reveal a factual basis for permitting the Commissioner to adopt a method of his own on the ground that petitioner’s method “does not clearly reflect income.” As an alternative argument petitioner urges that if service contract receipts are held to be taxable income when received, it should be entitled to accrue and deduct the costs incurred to earn the service contract receipts. It may well be that had petitioner regularly employed such an accounting method whereby from reliable experience reserves were set up to meet future costs such a method would have clearly reflected income. See Schuessler v. Commissioner. 5 Cir., 1956, 230 F.2d 722. But this is not the issue. The problem is not to decide what kind of a system the Commissioner, the Tax Court or the appellate courts might choose to have a taxpayer adopt. The sole question is: does the system actually employed clearly reflect income? Conversely, the question is not: would some other system have been better? Petitioner’s accounting method met the statutory test. The decision of the Tax Court should foe reversed and the cause remanded to the Tax Court for the entry of an appropriate decision under Rule 50, Tax Court Rules, 26 U.S.C.A. § 7453. . Petitioner alternatively urged that if the prepaid amounts are held to be taxable income on receipt it is then entitled to accrue and deduct the estimated expense of rendering future services. In the light of the disposition of this case it is unnecessary to consider this contention. . Section references are to the Internal Kevenue Code of 1939, 26 U.S.C.A. . Commissioner’s brief on appeal concedes that “it was certainly possible (even though it did not so happen in the years in question) that the taxpayer’s service obligations might have been fulfilled, at least in substantial part, in the taxable years in which the payments were Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_circuit	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Appellant, v. Alden D. STANTON and Louise M. Stanton, Appellees. No. 279, Docket 26665. United States Court of Appeals Second Circuit. Argued March 9, 1961. Decided March 23, 1961. Wayne G. Barnett, Department of Justice, Washington, D. C., Malvern Hill, Jr., Asst. U. S. Atty., Brooklyn, N. Y. (Abbott M. Sellers, Acting Asst. Atty. Gen., and Lee A. Jackson and James P. Turner, Dept, of Justice, Washington, D. C., and Cornelius W. Wickersham, Jr., U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y., on the brief), for appellant. Clendon H. Lee, New York City (John C. Farber, William F. Snyder, Theodore Q. Childs and O’Connor & Farber, New York City, on the brief), for appellees. Before LUMBARD, Chief Judge, and MAGRUDER and WATERMAN, Circuit Judges. Sitting by designation. PER CURIAM. We are here called upon once more to review the finding by the district court that payments in the amount of $20,000, made to Alden D. Stanton in 1942 and 1943 by the Corporation of Trinity Church in New York City, were a gift and therefore not taxable as gross income under § 22 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 22. The original determination by the district court was reversed by this court. 2 Cir., 1959, 268 F.2d 727. That decision was vacated and the case remanded to the district court by the Supreme Court of the United States for “new and adequate” findings of fact. C. I. R. v. Duberstein, 1960, 363 U.S. 278, 80 S.Ct. 1190, 1201, 4 L.Ed.2d 1218. Judge Byers then made detailed findings regarding all the relevant facts and concluded again that the payments to Stanton were a gift. D.C.E.D. N.Y.1960, 186 F.Supp. 393. The mandate of the Supreme Court requires us to review the district court’s inferences drawn from its fact findings by the “clearly erroneous” standard of Federal Rules of Civil Procedure 52(a), 28 U.S.C.A., 363 U.S. at page 291, 80 S.Ct. at page 1200. We have reviewed, in the light of the Supreme Court decision, all the prior proceedings and the findings made by the district court. We cannot say that Judge Byers’ careful and detailed findings and conclusions are clearly erroneous, and accordingly we affirm the judgment of the district court. Chief Judge Lumbard concurs in this result because of the directive of the Supreme Court that appellate review be “quite restricted,” 363 U.S. at page 290, 80 S.Ct. at page 1199, although he is of the opinion that the contrary inference should have been drawn from the undisputed basic facts for the reasons set forth in the majority opinion of Judge Hand at 268 F.2d 727. Judgment affirmed. Question: What is the 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_decisiontype	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. WARNER-JENKINSON CO., INC. v. HILTON DAVIS CHEMICAL CO. No. 95-728. Argued October 15, 1996 Decided March 3, 1997 Richard G. Taranto argued the cause for petitioner. With him on the briefs were H. Bartow Farr III and J. Robert Chambers. Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Days, Assistant Attorney General Bingaman, Cornelia T. L. Pillará, Nancy J. Linck, and Albin F. Drost. David E. Schmit argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed for Gateway Technologies, Inc., by Richard Grant Lyon; for GHZ Equipment Co. by Ronald D. Maines and Richard G. Wilkins; for the Information Technology Industry Council et al. by Joel M. Freed, Jerrold J. Ganzfried, John F. Cooney, and William D. Coston; for the Intellectual Property Owners by Carter G. Phillips, Mark E. Haddad, and Joseph R. Guerra; for MCI Telecommunications Corp. by Paul M. Smith and Nory Miller; for Micron Separations, Inc., by Steven M. Bauer and John J. Cotter; and for Seagate Technology, Inc., et al. by Carrie L. Walthour, Karl A. Limbach, Deborah Bailey-Wells, and Edward P. Heller III. Briefs of amici curiae urging affirmance were filed for the Biotechnology Industry Organization by Charles E. Ludlam; for Chiron Corp. by Donald S. Chisum; for the Dallas-Fort Worth Intellectual Property Law Association by Lawrence J. Bassuk; for Litton Systems, Inc., by Laurence H. Tribe and Jonathan S. Massey; and for the Ohio State Bar Association by Eugene P. Whetzel and Albert L. Bell. Briefs of amici curiae were filed for the American Automobile Manufacturers Association by D. Dennis Allegretti, Phillip D. Brady, and Andrew D. Koblenz; for the American Intellectual Property Law Association by Robert J. Baechtold, Stevan J. Bosses, Nicholas M. Cannella, Charles L. Gholz, and Roger W. Parkhurst; for the Chemical Manufacturers Association by Robert A. Armitage and Michael P. Walls; and for the Licensing Executive Society (U. S. A. and Canada), Inc., by Gayle Parker and James W. Gould. Justice Thomas delivered the opinion of the Court. • Nearly 50 years ago, this Court in Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U. S. 605 (1950), set out the modern contours of what is known in patent law as the “doctrine of equivalents.” Under this doctrine, a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is “equivalence” between the elements of the accused product or process and the claimed elements of the patented invention. Id., at 609. Petitioner, which was found to have infringed upon respondent’s patent under the doctrine of equivalents, invites us to speak the death of that doctrine. We decline that invitation. The significant disagreement within the Court of Appeals for the Federal Circuit concerning the application of Graver Tank suggests, however, that the doctrine is not free from confusion. We therefore will endeavor to clarify the proper scope of the doctrine. h — 1 The essential facts of this case are few. Petitioner Warner-Jenkinson Co. and respondent Hilton Davis Chemical Co. manufacture dyes. Impurities in those dyes must be removed. Hilton Davis holds United States Patent No. 4,560,746 (’746 patent), which discloses an improved purification process involving “ultrafiltration.” The ’746 process filters impure dye through a porous membrane at certain pressures and pH levels, resulting in a high purity dye product. The ’746 patent issued in 1985. As relevant to this case, the patent claims as its invention an improvement in the ul-trafiltration process as follows: “In a process for the purification of a dye... the improvement which comprises: subjecting an aqueous solution... to ultrafiltration through a membrane having a nominal pore diameter of 5-15 Angstroms under a hydrostatic pressure of approximately 200 to 400 p.si.g., at a pH from approximately 6.0 to 9.0, to thereby cause separation of said impurities from said dye....” App. 36-37 (emphasis added). The inventors added the phrase “at a pH from approximately 6.0 to 9.0” during patent prosecution. At a minimum, this phrase was added to distinguish a previous patent (the “Booth” patent) that disclosed an ultrafiltration process operating at a pH above 9.0. The parties disagree as to why the low-end pH limit of 6.0 was included as part of the claim. In 1986, Warner-Jenkinson developed an ultrafiltration process that operated with membrane pore diameters assumed to be 5-15 Angstroms, at pressures of 200 to nearly 500 p. s. i. g., and at a pH of 5.0. Warner-Jenkinson did not learn of the ’746 patent until after it had begun commercial use of its ultrafiltration process. Hilton Davis eventually learned of Warner-Jenkinson’s use of ultrafiltration and, in 1991, sued Warner-Jenkinson for patent infringement. As trial approached, Hilton Davis conceded that there was no literal infringement, and relied solely on the doctrine of equivalents. Over Warner-Jenkinson’s objection that the doctrine of equivalents was an equitable doctrine to be applied by the court, the issue of equivalence was included among those sent to the jury. The jury found that the ’746 patent was not invalid and that Warner-Jenkinson infringed upon the patent under the doctrine of equivalents. The jury also found, however, that Warner-Jenkinson had not intentionally infringed, and therefore awarded only 20% of the damages sought by Hilton Davis. The District Court denied Warner-Jenkinson’s post-trial motions, and entered a permanent injunction prohibiting Warner-Jenkinson from practicing ultrafiltration below 500 p. s. i. g. and below 9.01 pH. A fractured en banc Court of Appeals for the Federal Circuit affirmed. 62 F. 3d 1512 (1995). The majority below held that the doctrine of equivalents continues to exist and that its touchstone is whether substantial differences exist between the accused process and the patented process. Id., at 1521-1522. The court also held that the question of equivalence is for the jury to decide and that the jury in this case had substantial evidence from which it could conclude that the Warner-Jenkinson process was not substantially different from the ultrafiltration process disclosed in the ’746 patent. Id., at 1525. There were three separate dissents, commanding a total of 5 of 12 judges. Four of the five dissenting judges viewed the doctrine of equivalents as allowing an improper expansion of claim scope, contrary to this Court’s numerous holdings that it is the claim that defines the invention and gives notice to the public of the limits of the patent monopoly. Id., at 1537-1538 (opinion of Plager, J.). The fifth dissenter, the late Judge Nies, was able to reconcile the prohibition against enlarging the scope of claims and the doctrine of equivalents by applying the doctrine to each element of a claim, rather than to the accused product or process “overall.” Id., at 1574. As she explained it: “The ‘scope’ is not enlarged if courts do not go beyond the substitution of equivalent elements.” Ibid. All of the dissenters, however, would have found that a much narrowed doctrine of equivalents may be applied in whole or in part by the court. Id., at 1540-1542 (opinion of Plager, J.); id., at 1579 (opinion of Nies, J.). We granted certiorari, 516 U. S. 1145 (1996), and now reverse and remand. II In Graver Tank we considered the application of the doctrine of equivalents to an accused chemical composition for use in welding that differed from the patented welding material by the substitution of one chemical element. 339 U. S., at 610. The’ substituted element did not fall within the literal terms of the patent claim, but the Court nonetheless found that the “question which thus emerges is whether the substitution [of one element for the other]... is a change of such substance as to make the doctrine of equivalents inapplicable; or conversely, whether under the circumstances the change was so insubstantial that the trial court’s invocation of the doctrine of equivalents was justified.” Ibid. The Court also described some of the considerations that go into applying the doctrine of equivalents: “What constitutes equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case. Equivalence, in the patent law, is not the prisoner of a formula and is not an absolute to be considered in a vacuum. It does not require complete identity for every purpose and in every respect. In determining equivalents, things equal to the same thing may not be equal to each other and, by the same token, things for most purposes different may sometimes be equivalents. Consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with the other ingredients, and the function which it is intended to perform. An important factor is whether persons reasonably skilled in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was.” Id., at 609. Considering those factors, the Court viewed the difference between the chemical element claimed in the patent and the substitute element to be “colorable only,” and concluded that the trial court’s judgment of infringement under the doctrine of equivalents was proper. Id., at 612. A Petitioner’s primary argument in this Court is that the doctrine of equivalents, as set out in Graver Tank in 1950, did not survive the 1952 revision of the Patent Act, 35 U. S. C. § 100 et seq., because it is inconsistent with several aspects of that Act. In particular, petitioner argues: (1) The doctrine of equivalents is inconsistent with the statutory requirement that a patentee specifically “claim” the invention covered by a patent, § 112; (2) the doctrine circumvents the patent reissue process — designed to correct mistakes in drafting or the like — and avoids the express limitations on that process, §§251-252; (3) the doctrine is inconsistent with the primacy of the Patent and Trademark Office (PTO) in setting the scope óf a patent through the patent prosecution process; and (4) the doctrine was implicitly rejected as a general matter by Congress’ specific and limited inclusion of the doctrine in one section regarding “means” claiming, §112, ¶6. All but one of these arguments were made in Graver Tank in the context of the 1870 Patent Act, and failed to command a majority. The 1952 Patent Act is not materially different from the 1870 Act with regard to claiming, reissue, and the role of the PTO. Compare, e. g., 35 U. S. C. § 112 (“The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention”) with the Consolidated Patent Act of 1870, ch. 230, § 26, 16 Stat. 198, 201 (the applicant “shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery”). Such minor differences as exist between those provisions in the 1870 and the 1952 Acts have no bearing on the result reached in Graver Tank, and thus provide no basis for our overruling it. In the context of infringement, we have already held that pre-1952 precedent survived the passage of the 1952 Act. See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 U. S. 336, 342 (1961) (new section defining infringement “left intact the entire body of case law on direct infringement”). We see no reason to reach a different result here. Petitioner’s fourth argument for an implied congressional negation of the doctrine of equivalents turns on the reference to “equivalents” in the “means” claiming provision of the 1952 Act. Section 112, ¶ 6, a provision not contained in the 1870 Act, states: “An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” (Emphasis added.) Thus, under this new provision, an applicant can describe an element of his invention by the result accomplished or the function served, rather than describing the item or element to be used (e. g., “a means of connecting Part A to Part B,” rather than “a two-penny nail”). Congress enacted §112, ¶ 6, in response to Halliburton Oil Well Cementing Co. v. Walker, 329 U. S. 1 (1946), which rejected claims that “do not describe the invention but use ‘conveniently functional language at the exact point of novelty.’” Id., at 8 (citation omitted). See In re Donaldson Co., 16 F. 3d 1189, 1194 (CA Fed. 1994) (Congress enacted predecessor of § 112,¶ 6, in response to Halliburton); In re Fuetterer, 319 F. 2d 259, 264, n. 11 (CCPA 1963) (same); see also 2 D. Chisum, Patents §8.04[2], pp. 63-64 (1996) (discussing 1954 commentary of then-Chief Patent Examiner P. J. Federico). Section 112, ¶ 6, now expressly allows so-called “means” claims, with the proviso that application of the broad literal language of such claims must be limited to only those means that are “equiva-len[t]” to the actual means shown in the patent specification. This is an application of the doctrine of equivalents in a restrictive role, narrowing the application of broad literal claim elements. We recognized this type of role for the doctrine of equivalents in Graver Tank itself. 339 U. S., at 608-609. The added provision, however, is silent on the doctrine of equivalents as applied where there is no literal infringement. Because § 112, ¶ 6, was enacted as a targeted cure to a specific problem, and because the reference in that provision to “equivalents” appears to be no more than a prophylactic against potential side effects of that cure, such limited congressional action should not be overread for negative implications. Congress in 1952 could easily have responded to Graver Tank as it did to the Halliburton decision. But it did not. Absent something more compelling than the dubious negative inference offered by petitioner, the lengthy history of the doctrine of equivalents strongly supports adherence to our refusal in Graver Tank to find that the Patent Act conflicts with that doctrine. Congress can legislate the doctrine of equivalents out of existence any time it chooses. The various policy arguments now made by both sides are thus best addressed to Congress, not this Court. B We do, however, share the concern of the dissenters below that the doctrine of equivalents, as it has come to be applied since Graver Tank, has taken on a life of its own, unbounded by the patent claims. There can be no denying that the doctrine of equivalents, when applied broadly, conflicts with the definitional and public-notice functions of the statutory claiming requirement. Judge Nies identified one means of avoiding this conflict: “[A] distinction can be drawn that is not too esoteric between substitution of an equivalent for a component in an invention and enlarging the metes and bounds of the invention beyond what is claimed. “Where a claim to an invention is expressed as a combination of elements, as here, ‘equivalents’ in the sobriquet ‘Doctrine of Equivalents’ refers to the equivalency of an element or part of the invention with one that is substituted in the accused product or process. “This view that the accused device or process must be more than ‘equivalent’ overall reconciles the Supreme Court’s position on infringement by equivalents with its concurrent statements that ‘the courts have no right to enlarge a patent beyond the scope of its claims as allowed by the Patent Office.’ [Citations omitted.] The ‘scope’ is not enlarged if courts do not go beyond the substitution of equivalent elements.” 62 F. 3d, at 1573-1574 (dissenting opinion) (emphasis in original). We concur with this apt reconciliation of our two lines of precedent. Each element contained in a patent claim is deemed material to defining the scope of the patented invention, and thus the doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole. It is important to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety. So long as the doctrine of equivalents does not encroach beyond the limits just described, or beyond related limits to be discussed infra this page and 31-34, 39, n. 8, and 39-40, we are confident that the doctrine will not vitiate the central functions of the patent claims themselves. Ill Understandably reluctant to assume this Court would overrule Graver Tank, petitioner has offered alternative arguments in favor of a more restricted doctrine of equivalents than it feels was applied in this case. We address each in turn. A Petitioner first argues that Graver Tank never purported to supersede a well-established limit on nonliteral infringement, known variously as “prosecution history estoppel” and “file wrapper estoppel.” See Bayer Aktiengesellschaft v. Duphar Int’l Research B. V., 738 F. 2d 1237, 1238 (CA Fed.1984). According to petitioner, any surrender of subject matter during patent prosecution, regardless of the reason for such surrender, precludes recapturing any part of that subject matter, even if it is equivalent to the matter expressly claimed. Because, during patent prosecution, respondent limited the pH element of its claim to pH levels between 6.0 and 9.0, petitioner would have those limits form bright lines beyond which no equivalents may be claimed. Any inquiry into the reasons for a surrender, petitioner claims, would undermine the public’s right to clear notice of the scope of the patent as embodied in the patent file. We can readily agree with petitioner that Graver Tank did not dispose of prosecution history estoppel as a legal limitation on the doctrine of equivalents. But petitioner reaches too far in arguing that the reason for an amendment during patent prosecution is irrelevant to any subsequent estoppel. In each of our cases cited by petitioner and by the dissent below, prosecution history estoppel was tied to amendments made to avoid the prior art, or otherwise to address a specific concern — such as obviousness — that arguably would have rendered the claimed subject matter unpatentable. Thus, in Exhibit Supply Co. v. Ace Patents Corp., 315 U. S. 126 (1942), Chief Justice Stone distinguished inclusion of a limiting phrase in an original patent claim from the “very different” situation in which “the applicant, in order to meet objections in the Patent Office, based on references to the prior art, adopted the phrase as a substitute for the broader one” previously used. Id., at 136 (emphasis added). Similarly, in Keystone Driller Co. v. Northwest Engineering Corp., 294 U. S. 42 (1935), estoppel was applied where the initial claims were “rejected on the prior art,” id., at 48, n. 6, and where the allegedly infringing equivalent element was outside of the revised claims and within the prior art that formed the basis for the rejection of the earlier claims, id., at 48. It is telling that in each case this Court probed the reasoning behind the Patent Office’s insistence upon a change in the claims. In each instance, a change was demanded because the claim as otherwise written was viewed as not describing a patentable invention at all — typically because what it described was encompassed within the prior art. But, as the United States informs us, there are a variety of other reasons why the PTO may request a change in claim language. Brief for United States as Amicus Curiae 22-23 (counsel for the PTO also appearing on the brief). And if the PTO has been requesting changes in claim language without the intent to limit equivalents or, indeed, with the expectation that language it required would in many cases allow for a range of equivalents, we should be extremely reluctant to upset the basic assumptions of the PTO without substantial reason for doing so. Our prior cases have consistently applied prosecution history estoppel only where claims have been amended for a limited set of reasons, and we see no substantial cause for requiring a more rigid rule invoking an estoppel regardless of the reasons for a change. In this case, the patent examiner objected to the patent claim due to a perceived overlap with the Booth patent, which revealed an ultrafiltration process operating at a pH above 9.0. In response to this objection, the phrase “at a pH from approximately 6.0 to 9.0” was added to the claim. While it is undisputed that the upper limit of 9.0 was added in order to distinguish the Booth patent, the reason for adding the lower limit of 6.0 is unclear. The lower limit certainly did not serve to distinguish the Booth patent, which said nothing about pH levels below 6.0. Thus, while a lower limit of 6.0, by its mere inclusion, became a material element of the claim, that did not necessarily preclude the application of the doctrine of equivalents as to that element. See Hubbell v. United States, 179 U. S. 77, 82 (1900) (“ ‘[A]ll [specified elements] must be regarded as material,’ ” though it remains an open “'question whether an omitted part is supplied by an equivalent device or instrumentality’ ” (citation omitted)). Where the reason for the change was not related to avoiding the prior art, the change may introduce a new element, but it does not necessarily preclude infringement by equivalents of that element. We are left with the problem, however, of what to do in a case like the one at bar, where the record seems not to reveal the reason for including the lower pH limit of 6.0. In our view, holding that certain reasons for a claim amendment may avoid the application of prosecution history estoppel is not tantamount to holding that the absence of a reason for an amendment may similarly avoid such an estoppel. Mindful that claims do indeed serve both a definitional and a notice function, we think the better rule is to place the burden on the patent holder to establish the reason for an amendment required during patent prosecution. The court then would decide whether that reason is sufficient to overcome prosecution history estoppel as a bar to application of the doctrine of equivalents to the element added by that amendment. Where no explanation is established, however, the court should presume that the patent applicant had a substantial reason related to patentability for including the limiting element added by amendment. In those circumstances, prosecution history estoppel would bar the application of the doctrine of equivalents as to that'element. The presumption we have described, one subject to rebuttal if an appropriate reason for a required amendment is established, gives proper deference to the role of claims in defining an invention and providing public notice, and to the primacy of the PTO in ensuring that the claims allowed cover only subject matter that is properly patentable in a proffered patent application. Applied in this fashion, prosecution history estoppel places reasonable limits on the doctrine of equivalents, and further insulates the doctrine from any feared conflict with the Patent Act. Because respondent has not proffered in this Court a reason for the addition of a lower pH limit, it is impossible to tell whether the reason for that addition could properly avoid an estoppel. Whether a reason in fact exists, but simply was not adequately developed, we cannot say. On remand, the Federal Circuit can consider whether reasons for that portion of the amendment were offered or not and whether further opportunity to establish such reasons would be proper. B Petitioner next argues that even if Graver Tank remains good law, the case held only that the absence of substantial differences, was a necessary element for infringement under the doctrine of equivalents, not that it was sufficient for such a result. Brief for Petitioner 32. Relying on Graver Tank’s, references to the problem of an “unscrupulous copyist” and “piracy,” 339 U. S., at 607, petitioner would require judicial exploration of the equities of a case before allowing application of the doctrine of equivalents. To be sure, Graver Tank refers to the prevention of copying and piracy when describing the benefits of the doctrine of equivalents. That the doctrine produces such benefits, however, does not mean that its application is limited only to cases where those particular benefits are obtained. Elsewhere in Graver Tank the doctrine is described in more neutral terms. And the history of the doctrine as relied upon by Graver Tank reflects a basis for the doctrine not so limited as petitioner would have it. In Winans v. Denmead, 15 How. 330, 343 (1854), we described the doctrine of equivalents as growing out of a legally implied term in each patent claim that “the claim extends to the thing patented, however its form or proportions may be varied.” Under that view, application of the doctrine of equivalents involves determining whether a particular accused product or process infringes upon the patent claim, where the claim takes the form — half express, half implied — of “X and its equivalents.” Machine Co. v. Murphy, 97 U. S. 120, 125 (1878), on which Graver Tank also relied, offers a similarly intent-neutral view of the doctrine of equivalents: “[T]he substantial equivalent of a thing, in the sense of the patent law, is the same as the thing itself; so that if two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.” If the essential predicate of the doctrine of equivalents is the notion of identity between a patented invention and its equivalent, there is no basis for treating an infringing equivalent any differently from a device that infringes the express terms of the patent. Application of the doctrine of equivalents, therefore, is akin to determining literal infringement, and neither requires proof of intent. Petitioner also points to Graver Tank’s, seeming reliance on the absence of independent experimentation by the alleged infringer as supporting an equitable defense to the doctrine of equivalents. The federal Circuit explained this factor by suggesting that an alleged infringer’s behavior, be it copying, designing around a patent, or independent experimentation, indirectly reflects the substantiality of the differences between the patented invention and the accused device or process. According to the Federal Circuit, a person aiming to copy or aiming to avoid a patent is imagined to be at least marginally skilled at copying or avoidance, and thus intentional copying raises an inference — rebuttable by proof of independent development — of having only insubstantial differences, and intentionally designing around a patent claim raises an inference of substantial differences. This explanation leaves much to be desired. At a minimum, one wonders how ever to distinguish between the intentional copyist making minor changes to lower the risk of legal action and the incremental innovator designing around the claims, yet seeking to capture as much as is permissible of the patented advance. But another explanation is available that does not require a divergence from generally objective principles of patent infringement. In both instances in Graver Tank where we referred to independent research or experiments, we were discussing the known interchangeability between the chemical compound claimed in the patent and the compound substituted by the alleged infringer. The need for independent experimentation thus could reflect knowledge — or lack thereof — of interchangeability possessed by one presumably skilled in the art. The known interchangeability of substitutes for an element of a patent is one of the express objective factors noted by Graver Tank as bearing upon whether the accused device is substantially the same as the patented invention. Independent experimentation by the alleged in-fringer would not always reflect upon the objective question whether a person skilled in the art would have known of the interchangeability between two elements, but in many cases it would likely be probative of such knowledge. Although Graver Tank certainly leaves room for petitioner’s suggested inclusion of intent-based elements in the doctrine of equivalents, we do not read it as requiring them. The better view, and the one consistent with Graver Tank’s predecessors and the objective approach to infringement, is that intent plays no role in the application of the doctrine of equivalents. c Finally, petitioner proposes that in order to minimize conflict with the notice function of patent claims, the doctrine of equivalents should be limited to equivalents that are disclosed within the patent itself. A milder version of this argument, which found favor with the dissenters below, is that the doctrine should be limited to equivalents that were known at the time the patent was issued, and should not extend to after-arising equivalents. As we have noted, supra, at 36, with regard to the objective nature of the doctrine, a skilled practitioner’s knowledge of the interchangeability between claimed and accused elements is not relevant for its own sake, but rather for what it tells the factfinder about the similarities or differences between those elements. Much as the perspective of the hypothetical “reasonable person” gives content to concepts such as “negligent” behavior, the perspective of a skilled practitioner provides content to, and limits on, the concept of “equivalence.” Insofar as the question under the doctrine of equivalents is whether an accused element is equivalent to a claimed element, the proper time for evaluating equivalency — and thus knowledge of interchangeability between elements — is at the time of infringement, not at the time the patent was issued. And rejecting the milder version of petitioner’s argument necessarily rejects the more severe proposition that equivalents must not only be known, but must also be actually disclosed in the patent in order for such equivalents to infringe upon the patent. 1 — I <J The various opinions below, respondents, and amici devote considerable attention to whether application of the doctrine of equivalents is a task for the judge or for the jury. However, despite petitioner’s argument below that the doctrine should be applied by the judge, in this Court petitioner makes only passing reference to this issue. See Brief for Petitioner 22, n. 15 (“If this Court were to hold in Markman v. Westview Instruments, Inc., No. 95-26 (argued Jan. 8, 1996), that judges rather than juries are to construe patent claims, so as to provide a uniform definition of the scope of the legally protected monopoly, it would seem at cross-purposes to say that juries may nonetheless expand the claims by resort to a broad notion of ‘equivalents’ ”); Reply Brief for Petitioner 20 (whether judge or jury should apply the doctrine of equivalents depends on how the Court views the nature of the inquiry under the doctrine of equivalents). Petitioner’s comments go more to the alleged inconsistency between the doctrine of equivalents and the claiming requirement than to the role of the jury in applying the doctrine as properly understood. Because resolution of whether, or how much of, the application of the doctrine of equivalents can be resolved by the court is not necessary for us to answer the question presented, we decline to take it up. The Federal Circuit held that it was for the jury to decide whether the accused process was equivalent to the claimed process. There was ample support in our prior cases for that holding. See, e. g., Machine Co. v. Murphy, 97 U. S., at 125 (“[I]n determining the question of infringement, the court or jury, as the case may be,... are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same result”); Winans v. Denmead, 15 How., at 344 (“[It] is a question for the jury” whether the accused device was “the same in kind, and effected by the employment of [the patent-ee’s] mode of operation in substance”). Nothing in our recent decision in Markman v. Westview Instruments, Inc., 517 U. S. 370 (1996), necessitates a different result than that reached by the Federal Circuit. Indeed, Markman cites with considerable favor, when discussing the role of judge and jury, the seminal Winans decision. 517 U. S., at 384-385. Whether, if the issue were squarely presented to us, we would reach a different conclusion than did the Federal Circuit is not a question we need decide today. V All that remains is to address the debate regarding the linguistic framework under which “equivalence” is determined. Both the parties and the Federal Circuit spend considerable time arguing whether the so-called “triple identity” test — focusing on the function served by a particular claim element, the way that element serves that function, and the result thus obtained by that element — is a suitable method for determining equivalence, or whether an “insubstantial differences” approach is better. There seems to be substantial agreement that, while the triple identity test may be suitable for analyzing mechanical devices, it often provides a poor framework for analyzing other products or processes. On the other hand, the insubstantial differences test offers little additional guidance as to what might render any given difference “insubstantial.” In our view, the particular linguistic framework used is less important than whether the test is probative of the essential inquiry: Does the accused product or process contain elements identical or equivalent to each claimed element of the patented invention? Different linguistic frameworks may be more suitable to different cases, depending on their particular facts. A focus on individual elements and a special vigilance against allowing the concept of equivalence to eliminate completely any such elements should reduce considerably the imprecision of whatever language is used. An analysis of the role played by each element in the context of the specific patent claim will thus inform the inquiry as to whether a substitute element matches the function, way, and result of the claimed element, or whether the substitute element plays a role substantially different from the claimed element. With these limiting principles as a backdrop, we see no purpose in going further and micromanaging the Federal Circuit’s particular word choice for analyzing equivalence. We expect that the Federal Circuit will refine the formulation of the test for equivalence in the orderly course of case-by-case determinations, and we leave such refinement to that court’s sound judgment in this area of its special expertise. VI Today we adhere to the doctrine of equivalents. The determination of equivalence should be applied as an objective inquiry on an element-by-element basis. Prosecution history estoppel continues to be available as a defense to infringement, but if the patent holder demonstrates that an amendment required during prosecution had a purpose unrelated to patentability, a court must consider that purpose in order to decide whether an estoppel is precluded. Where the patent holder is unable to establish such a purpose, a court should presume that the purpose behind the required amendment is such that prosecution history estoppel would apply. Because the Court of Appeals for the Federal Circuit did not consider all of the requirements as described by us today, particularly as related to prosecution history estoppel and the preservation of some meaning for each element in a claim, we reverse its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. The pH, or power (exponent) of Hydrogen, of a solution is a measure of its acidity or alkalinity. A pH of 7.0 is neutral; a pH below 7.0 is acidic; and a pH above 7.0 is alkaline. Although measurement of pH is on a logarithmic scale, with each whole number difference representing a tenfold difference in acidity, the practical significance of any such difference will often depend on the context. Pure water, for example, has a neutral pH of 7 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_circuit	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. UNITED STATES of America, Appellee, v. Daniel M. PILLA, Appellant. No. 76-1616. United States Court of Appeals, Eighth Circuit. Submitted Nov. 8, 1976. Decided Jan. 5, 1977. Rehearing and Rehearing En Banc Denied March 15, 1977. Neal J. Shapiro, Minneapolis, Minn, and Daniel M. Pilla, St. Paul, Minn., on briefs for appellant. Robert G. Renner, U.S. Atty., Francis X. Hermann, Asst. U.S. Atty. and Richard Fellows, Intern, Minneapolis, Minn., on briefs for appellee. Before GIBSON, Chief Judge, and HEA-NEY and HENLEY, Circuit Judges. HENLEY, Circuit Judge. On November 13, 1974 the federal grand jury for the District of Minnesota returned a one-count indictment against the defendant-appellant, Daniel M. Pilla, charging in substance that on or about August 10, 1974 the defendant unlawfully attempted and endeavored to rescue from premises described as Room B101, 230 E. 5th Street, St. Paul, Minnesota, certain property that had been seized by the Internal Revenue Service (IRS) under the provisions of the Internal Revenue Code of the United States, 26 U.S.C. § 7212(b). The case was assigned originally to Chief United States District Judge Edward J. Devitt and was set down for arraignment. On November 22, 1974 the defendant, acting pro se, filed an affidavit of prejudice against Judge Devitt, which affidavit also involved District Judges Larson and Lord. The originally scheduled arraignment was not held. In January, 1975 District Judge Donald D. Alsop went on the bench in Minnesota, and Judge Devitt assigned the ease to him. The defendant promptly moved to disqualify Judge Alsop and requested that he be represented by Jerome Daly, a disbarred Minnesota attorney. On June 20, 1975 the case came on for hearing before Judge Alsop on the motion to disqualify and for leave to the defendant to be represented by Daly and also for arraignment. Judge Alsop refused to disqualify himself and also refused to permit the defendant to be represented by Daly or other lay counsel. The defendant thereupon refused to plead, and a plea of not guilty was entered for him. In July, 1975 a number of pretrial motions were filed on behalf of the defendant by Mr. Neal J. Shapiro of the Minneapolis Bar. The record available to us does not clearly reflect the circumstances in which Mr. Shapiro came into the case. We think it unlikely that the defendant employed him, and he may well have been appointed by Judge Alsop. In any event, the defendant did not immediately reject the pretrial services of Mr. Shapiro. In April, 1976 hearings on preliminary matters, including motions, were conducted before Judge Alsop which hearings were attended by Mr. Francis X. Hermann, Assistant United States Attorney, by Mr. Shapiro and by the defendant personally. In the course of those hearings, which were characterized to some extent by verbal attacks by the defendant directed at the trial judge, it developed that Mr. Shapiro had received from the government all of the pretrial information that he needed. However, at the insistence of the defendant he withdrew all of the defendant’s motions since the defendant was contending that the district court was without jurisdiction to try him. At one of the hearings the defendant discharged Mr. Shapiro and renewed his request to be represented by Daly or by certain other lay people who were members of an organization known as the Life Science Church of which defendant and Daly are ministers. That request was denied. The district court appointed Mr. Shapiro to serve as stand-by counsel for the defendant and directed Shapiro to attend the trial and to be available at all times should the defendant decide to accept his services or to call upon him for assistance. The case was set for trial on May 6, 1976. On that day the defendant appeared and filed a pro se motion for a dismissal of the indictment on the ground that he had been denied a speedy trial as guaranteed by the sixth amendment to the Constitution. That motion was denied, and the trial began. It was concluded on May 6. Mr. Shapiro was present throughout the trial and was available to the defendant. Although the defendant stated repeatedly that he did not know how to defend himself, he steadfastly refused to accept the services of Shapiro and made repeated demands to be represented by lay counsel, notably Daly, who was present in the courtroom. Those demands were rejected. Defendant’s participation in the trial was negative, hostile and abusive toward the court to the point of contempt. The defendant refused to cross-examine government witnesses on the ground that he did not know how to do so. He called no witnesses and did not take the stand. He attempted to make a closing argument characterized by attacks on the trial judge and on the course of the proceedings. When Judge Alsop quite properly refused to permit the defendant to proceed along those lines, defendant closed his argument. The district court instructed the jury as to the law of the case, and after short deliberation the jury found the defendant guilty. On July 20, 1976 the district court sentenced the defendant to imprisonment for one year. At the sentencing hearing the defendant took advantage of his right of allocution to deliver a final diatribe against the trial judge. From what has been said it is clear that the case presented difficult problems of trial management, and we think that Judge Alsop handled those problems properly and with commendable patience and tact. This appeal has been submitted to us without argument. We have before us, in addition to briefs filed by the government, the record in the case, including transcripts and exhibits, a brief filed on defendant’s behalf by Mr. Shapiro, and a brief filed by the defendant pro se which may well have been prepared by Mr. Daly. For reversal, the defendant brings forward a number of assignments of error, namely: 1. That the defendant was denied his right to a speedy trial. 2. That the district court erred in refusing to permit the defendant to be represented by lay counsel, including Daly. 8. That the district court erred in admitting certain evidence. 4. That the verdict and the judgment based thereon cannot be sustained because the seizure of defendant’s property was illegal. 5. That the evidence was insufficient to sustain the verdict. I We take up, first, the claim that the evidence was insufficient to sustain the verdict. In evaluating that claim we view the evidence in the light most favorable to the government and are required to give to the government the benefit of all inferences favorable to it that may reasonably be drawn from the evidence, and ultimately the question is whether the verdict was sustained by substantial evidence. United States v. McColgin, 535 F.2d 471, 473 (8th Cir. 1976); United States v. Wisdom, 534 F.2d 1306, 1309 (8th Cir. 1976). Apart from any ultimate inference of guilt or innocence, there is very little, if any, dispute about the facts of the case. The defendant resides in St. Paul and during the time with which we are concerned he was engaged in the business of commercial printing and engraving. He was operating under the trade name Collins Printing Company and was also operating A. J. Mad-sen Ruling & Binding Company, Inc. Both of those establishments were located on the same premises on East 5th Street which had been rented or leased by the defendant from the owner. Defendant’s place of business was in what appears to be a split level basement. The premises consisted of an office area, presumably containing furniture and fixtures, and a shop area containing machinery and various other items such as ink, dies, and paper stock of various kinds. The office area was some few feet higher than the shop area and was connected to the shop area by a short flight of stairs at the head of which there was a door leading to the office. Apparently, entrance to the basement could be effected by the use of an elevator from street level. There were also two other means of ingress and egress. One of those consisted of doors opening on a freight ramp. The other consisted of a “movable wall” which was hinged and could be pushed inward. From at least June 30, 1969 through 1973 and thereafter the defendant was an employer of labor, and he was required to withhold from the wages of employees federal income taxes and social security taxes, to file returns reflecting his withholdings, and to account for and pay over the with-holdings to the government periodically. The defendant withheld the taxes and filed the returns during the period above mentioned, but he did not pay the taxes shown by the returns to be due. Consequently, those taxes plus statutory penalty and interest were duly assessed by the IRS. For the period between June 30, 1969 and December 31, 1973 the total assessments against “Daniel M. Pilla, Collins Printing Co., 230 E. 5th St., St. Paul, Minn.” amounted to $10,209.35. The assessment for the fourth quarter of 1973 was made on April 1, 1974 and amounted to $74.76. A. J. Madsen Ruling & Binding Co., Inc. filed no withholding tax returns for any period after the first quarter of 1972. Returns were filed by Madsen for the third quarter of 1968, the third quarter of 1969, the second quarter of 1971, and the first quarter of 1972. Total assessments against that company amounted to $811.72. Following its usual procedures the IRS made demands on the defendant for payment of the taxes in question and undertook to collect them by amicable means. The defendant did not deny that he owed the taxes, but in the course of earlier contacts between him and the IRS he professed to be financially unable to pay them. However, as time went by the defendant’s attitude toward his tax liabilities and toward the IRS changed and became belligerent. And by July, 1974 defendant had put up some signs in his place of business commanding federal agents and officers to stay out. On July 9, 1974 defendant’s file was turned over to Internal Revenue Officer Ronald Mills, and he was charged with the responsibility of collecting the taxes. Mills called on the defendant at his place of business, and the defendant called his attention to the signs which Mills had seen. The defendant told Mills that he was writing him a letter; Mills suggested that the letter be delivered to him at once as he was going to close down the premises the next day. Mills took his departure, conferred with his superiors, and on July 10 prepared two notices of levy pursuant to 26 U.S.C. § 6331; one notice related to Collins Printing Co. and the other related to A. J. Madsen Ruling & Binding Co., Inc. Each notice set out the assessment history of the business concerned. On July 11 Mills, accompanied by other agents, came to the defendant’s place of business, served the notices of levy, and seized all of the property in the establishment. The property was not removed from the building but was left therein pursuant to an arrangement between the IRS and the owner of the building. Seizure notices were placed on the office door and on the freight doors, and seizure tags were placed on the items of machinery in the shop. Thereafter the defendant commenced a civil action in the district court seeking to obtain a temporary restraining order forbidding further proceedings under the levy. On July 17 and July 24 the defendant was permitted to enter the premises in the company of Mills and certain items of property on which the government had no claim were released to him. Defendant’s civil suit was dismissed or at least his application for a temporary restraining order was denied. On July 29 Pilla went upon the premises and opened his establishment for business; one of his employees, Richard S. Nasby, was told by Pilla that he could return to work, and he did so. The owner of the building notified Officer Mills as to what had happened, and Mills and Special Agent Donald Kirst of the Intelligence Division of the IRS went to the premises and found Nasby at work. They told him to leave, which he did, and the agents then inspected the premises and found that the warning signs had been removed from the doors and that the tags had been removed from the machinery to which they had been affixed. Defendant denied that he had removed the signs and tags personally, but it is clear that they were removed with his knowledge and consent. Before Mills and Kirst left the premises, they restored the signs and reaffixed the tags. On this occasion a sign was placed on the movable wall that has been mentioned as well as on the other entrances to the establishment. Later, on July 29 and on July 30, the defendant was in telephonic contact with both Mills and Kirst. He told them in effect that his property had been seized illegally, and that regardless of what the court or the IRS might say he was going to deal with his property as he pleased. He was told that he must not enter the building without permission, and that if he removed anything from it, he would be subject to prosecution. On August 5 the building was entered again and certain property was removed therefrom; this entry did not involve a removal of the signs or tags, but the signs were tampered with. Evidence was admitted from which the jury might have inferred and probably did infer that the defendant was the person who made the entry and removed the property. Following the episode just described, the premises were put under surveillance. Shortly after noon on August 10, the date mentioned in the indictment, Special Agent Jon Hermann and Special Agent Urbanski had the premises under observation. They saw the defendant and his son park an automobile near the establishment and go into another place of business across the street. After a time Special Agent Hermann and Special Agent Urbanski went to the premises and Hermann entered the basement and took station in the shop area which was dark. The door by which he gained ingress was locked behind him by Urbanski who returned to the original surveillance station. The two agents were in radio contact with each other. After a few minutes Hermann was advised by Urbanski that the defendant had entered the building, and Hermann heard movement in the office area. At about that time the movable door was pushed slightly inward, and a person who was evidently the defendant’s son slipped through the entrance, crossed the shop and entered the office area. The defendant then emerged from the office area and entered the shop, turning on a light as he did so. However, he did not observe Hermann. The defendant remained in the shop about thirty seconds, gathered up an armload of material and returned to the office turning out the light in the shop. At this point the defendant was accosted by Special Agent Hermann who placed him under arrest. The defendant voluntarily stated that he had come to the premises to pick up some of his “stuff,” and he indicated some invoices and envelopes and some blank stock consisting of white and blue paper. The district court instructed the jury fully and correctly on such matters as burden of proof, reasonable doubt, presumption of innocence, circumstantial evidence, and with respect to the weight of the evidence and credibility of witnesses. The jury was told that the burden was on the government to prove beyond a reasonable doubt that the defendant had forcibly attempted or endeavored to rescue certain property; that the property had been seized by persons authorized to do so by virtue of their office; and that the defendant knew that the property had been seized. The jury was instructed that to attempt to commit an offense means “willfully to do some act in an effort to bring about or accomplish something which the law forbids.” As to the word “forcibly” appearing in the statute, the jury was told that the term was not limited to force exerted against persons but embraced any force used, and that sufficient force would have been shown if the jury found that the defendant “removed or caused to be removed Internal Revenue Service warning stickers.” The jury was also told that for the purpose of showing that the property had been seized under the Internal Revenue Code, the government was required to show that it had been seized by persons authorized to do so by virtue of their office, and that one does not “rescue” property merely by taking it, but “by taking it with the realization that he is removing it from government custody.” As to the knowledge and intent of the defendant the jury was instructed: “Finally, an act is done knowingly if done voluntarily and intentionally and not because of mistake, or accident or other innocent reason. To satisfy the mental state requirement of the statute here charged in the indictment, it must be proved that the defendant purposefully, as opposed to mistakenly, attempted to retake property knowing that it had been seized by the Internal Revenue Service.” The defendant did not object to the instructions of the district court and no objection to them as such has been made here. In our view they were supported by the decisions in United States v. Oliver, 421 F.2d 1034, 1036-37 (10th Cir. 1970); and United States v. Scolnick, 392 F.2d 320 (3d Cir.), cert. denied, 392 U.S. 931, 88 S.Ct. 2283, 20 L.Ed.2d 1389, sub nom. Brooks v. United States (1968). They were not contrary to what was said in the early case of Cooper v. United States, 299 F. 483 (3d Cir. 1924), which was decided under a statute quite similar to what is now 26 U.S.C. § 7212(b). See also United States v. Heck, 499 F.2d 778 (9th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974). We find no plain or manifest error in the instructions. There is no question in this case as to what the defendant actually did. And bearing in mind the fact that he was not accused of actually rescuing any property but only with attempting to do so, we think that- the jury was justified in finding, although it was not required to find, that the conduct of the defendant on August 10 constituted an unlawful attempt to forcibly rescue property that had been seized under the Internal Revenue Code. We hold, therefore, that the district court did not err in submitting the case to the jury, and that the jury’s verdict was sustained by substantial evidence. II We next consider the contention that the verdict cannot stand because the underlying seizure was illegal. In addressing ourselves to this question we will assume that in a case of this kind the government must prove that the seizure was legal in the sense that it was in accordance with prescribed procedures and was effected by officers having authority to make the seizure. There is no doubt about those things in this case; nor has there ever been any doubt that the defendant owed the taxes involved in the case. The defendant’s argument boils down to the proposition that 26 U.S.C. § 6331 is unconstitutional because it permits a seizure of property without prior judicial proceedings. That argument has been out of date since the Supreme Court decided Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931), more than forty-five years ago. See Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Kalb v. United States, 505 F.2d 506, 510 (2d Cir. 1974); and Tavares v. United States, 491 F.2d 725 (9th Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975). Ill The defendant argues that the district court erred in admitting evidence establishing that the defendant had not paid a substantial amount of taxes and evidence as to the procedures that were followed by the Internal Revenue Service in undertaking to effect collection from the defendant prior to the seizure. It is said that admission of this evidence was plain error which may be reviewed here under Fed.R.Crim.P. 52(b) although no objection was made to the evidence in the district court. We do not agree. The government was required to prove the seizure that took place on July 11, and we think that it was entitled, and may have been required, to show the basis for the seizure which was the tax liability of the defendant extending over a period of several years. The notices of levy which have been mentioned were clearly admissible, and they showed the amounts of the assessments. It must be remembered that the government seized all of the property contained in the defendant’s establishment, and the jury was entitled to know that the seizure was based on a substantial and not a trivial tax liability. The cases cited by defendant, Mares v. United States, 383 F.2d 811 (10th Cir. 1967), and South v. United States, 368 F.2d 202 (5th Cir. 1966), are not in point since the offenses charged in those cases had nothing whatever to do with the internal revenue laws or tax liabilities of the defendants. With respect to the evidence as to defendant’s dealings with the Internal Revenue Service or as to its dealings with the defendant prior to July 11, 1974, it appears to us that this evidence tended to show the defendant’s general attitude toward the federal tax laws and to the IRS and was relevant as bearing on his motive and intent when he entered the premises on August 10, 1974. Nor do we think that the district court erred in permitting the government to introduce evidence with respect to the July 29 entry and as to the August 5 entry and evidence tending to indicate that the defendant was the person who entered the premises on the latter date and removed property therefrom. It is quite true that ordinarily evidence of other crimes is not admissible to prove guilt of a particular crime charged. There are, however, exceptions to that rule, and one of them is that evidence of other crimes is admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). The evidence as to the defendant’s involvement in the August 5 episode fell within the exception just mentioned, it was admitted for an appropriately limited purpose, and the jury was adequately cautioned by the trial judge as to the purpose for which it could consider the evidence. IV We reject defendant’s contention that he was denied a speedy trial, and that the denial required a dismissal under the holding in Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). The defendant was indicted, arraigned and put to trial prior to the effective date of the time limitations appearing in the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 et seq. Consequently, his contention must be measured by the sixth amendment itself as implemented by Fed.R. Crim.P. 48(b); and the matter addressed itself to the discretion of the district court. 3 C. Wright, Federal Practice & Procedure, Criminal, § 814 at 319 (1969). The lapse of time between the return of the indictment in November, 1974 and the beginning of the trial on May 4, 1976 was not due to any fault or bad motive on the part of the government; it was due in part to the actions taken by the defendant shortly after the indictment was returned; no demand for a speedy trial was made until just before the trial began, and we are satisfied that the defendant was not prejudiced by the delay in any way. In such circumstances we see no abuse of discretion on the part of the district court in denying the motion to dismiss for lack of a speedy trial. V In view of our holding in Pilla v. American Bar Ass’n, 542 F.2d 56 (8th Cir. 1976), the district court did not err in refusing to permit the defendant to be represented by Mr. Daly or by other lay counsel suggested by him. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), cited by the defendant, simply holds that a defendant in a criminal case is entitled to represent himself and may not have counsel thrust upon him by the trial court. The ease does not hold that a defendant who is unwilling to be represented by a licensed attorney is entitled to the assistance of lay counsel or of an attorney who has been disbarred or suspended from practice. We do not think that defendant’s right of self-representation which was recognized by the district court was violated by the part that Mr. Shapiro played in the ease. While he was present and was available to the defendant, he did not participate in the trial in any way. We see nothing objectionable in the appointing of stand-by counsel as was done in this case. Such an action is a wise precaution against the contingency that may arise should the defendant change his mind in the middle of a trial and decide that he wants counsel. In his excellent brief filed with us Mr. Shapiro contends that in any event the district court failed to warn the defendant adequately of the consequences that would or might result should he go to trial without counsel. We disagree. The defendant was fully advised of his right to counsel, but that he could not be represented by lay counsel. He knew that if he refused to accept the services of Mr. Shapiro or another licensed lawyer, he would have to go to trial without counsel. He was well aware and stated repeatedly that he did not know how to defend himself in a criminal trial. We are satisfied that the defendant intelligently, voluntarily and effectively waived his constitutional right of representation. From our consideration of the record as a whole, we are convinced that the defendant received a fair trial, and that the verdict of the jury was supported by the evidence. We affirm the judgment of the district court. . The statute reads as follows: (b) Forcible rescue of seized property.— Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years. . See In re Daly, 291 Minn. 488, 189 N.W.2d 176 (1971). . The proceedings in the district court were affected substantially by the personality and views of Mr. Pilla as an individual. He, and others of like mind, are strongly opposed to the federal income tax. They also take the position that an individual involved in litigation, including criminal litigation, is entitled to be represented by lay counsel of his choice and that it is a violation of the Constitution of the United States for the practice of law in the state and federal courts to be limited to licensed attorneys in good standing. In April, 1974 Pilla and Jerome Daly, who has been mentioned, filed a civil suit in the district court for the purpose of establishing that alleged right. Similar suits were filed by other persons in other federal district courts in Alabama, Indiana, Pennsylvania, Texas and Wisconsin. Agreeable to multi-district litigation procedures, a number of those cases, including the Minnesota case, were assigned to The Honorable Raynaldo G. Garza, Chief United States District Judge for the Southern District of Texas. In a well reasoned opinion Judge Garza found the claims of the plaintiffs to be without merit and dismissed all of the cases. Turner v. American Bar Ass’n, 407 F.Supp. 451 (N.D.Tex., W.D.Pa., N.D.Ind., D.Minn., S.D.Ala., W.D.Wis.1975). Pilla and Daly appealed their case to this court, and we affirmed principally on the basis of Judge Garza’s opinion. Pilla v. American Bar Ass’n, 542 F.2d 56 (8th Cir. 1976). The Pilla-Daly case was pending before Judge Garza when Pilla was indicted in the instant case, and it was pending on appeal in this court when the defendant was tried in the district court. The position that the defendant assumed in the district court about his alleged right to be represented by Daly or other lay counsel was consistent with the position that he was maintaining in the Pilla-Daly litigation. . As this court has observed in earlier cases involving withholding taxes, it is not unusual for an employer who is undercapitalized or short of cash to find himself unable to meet net payrolls and operating expenses while at the same time making proper payments to the government of funds withheld from employees, and such an employer, if he wants to remain in business, simply does not pay over the with-holdings, but uses them for his own purposes. It should be kept in mind that when an employer takes that course of action, it does not affect adversely the tax situation of the employees; if there have been proper withholdings from wages, the employees are credited with the taxes withheld, and unless the government is able by one means or another to collect them from the employer or from some other responsible person, the tax revenues are simply lost. See United States v. Paulton, 540 F.2d 886 (8th Cir. 1976) and Hartman v. United States, 538 F.2d 1336 (8th Cir. 1976). . There are very few reported opinions dealing with alleged violations of § 7212(b). 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_petitioner	167	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. SAFEWAY STORES, INC., v. OKLAHOMA RETAIL GROCERS ASSOCIATION, INC., et al. No. 252. Argued May 19, 1959. Decided June 22, 1959. Ramsey Clark argued the cause for appellant. With him pn the brief were V. P. Crowe, Robert L. Clark and William L. Keller. Samuel M: Lane argued the cause for appellees. With him on the brief were W. J. Holloway, Sr., M. A. Ned Looney and Robert P. Beshar. Mac Q. Williamson, Attorney General of Oklahoma, filed a brief, as amicus curiae, urging affirmance. Chester Inwald filed a brief for the National Association of Tobacco Distributors, Inc., as amicus curiae, urging affirmance. Mr. Justice Frankfurter delivered the opinion of the Court. This is a suit for an injunction, brought in a state court" in Oklahoma by appellee, Oklahoma Retail Grocers Association, against appellant, Safeway Stores, for selling several specified items of retail grocery merchandise below “cost” in violation of the Oklahoma Unfair Sales Act. Okla. Stat. tit. 15, §§ 598.1-598.11 (1951). Section 598.3 of the Act provides: “It is hereby declared that any advertising, offer to sell, or sale of any merchandise, either by retailers or wholesalers, at less than cost as defined'in this Adt with the intent and purpose of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor or otherwise injuring a competitor, impair and prevent fair competition, injure public welfare, are unfair competition and contrary to public policy and the policy of this Act, where the result of such advertising, offer or sale is to tend to deceive any purchaser or prospective purchaser, or to substantially lessen competition, or to unreasonably restrain trade, or to tend to create a monopoly in any line of commerce.” The elements of “cost” are enumerated in other sections of the statute. Safeway defended on the ground, inter alia, that its. reductions were permitted by § 598.7 of the Unfair Sales Act which allows “any retailer or wholesaler” to “. . . advertise, offer to sell, or sell merchandise at a price made in good faith to meet the price of a competitor who is selling the same article or products of comparable quality at cost to him as a wholesaler or retailer.” Safeway by cross-petition sought to enjoin several named members of appellee Association, including Speed, alleging that they were selling below cost in violation of the Act. The trial court, with some qualification, granted the injunction against Safeway and denied relief against appellees. On appeal, the Supreme Court of Oklahoma affirmed, 322 P. 2d 179, and since the constitutionality of the state statute was challenged under the Fourteenth Amendment, we noted probable jurisdiction, 358 U. S. 807, and brought the case here under 28 U. S. C. § 1257 (2). Safeway makes two main claims. 1. Safeway justified cutting prices below cost in some cities by claiming it was to meet the prices of some of its competitors who were also selling below cost. The statute allows a reduction below cost only when it is a good faith meeting of the competition of a seller who is selling at his own cost. The trial court found that Safeway’s reductions violated the Act, and that Safeway could not avail itself of the statutory defense of meeting competition since its reductions were not in good faith but were made to meet prices Safeway “either knew or had reason to know were illegal . . . .” The court enjoined Safeway from “. . . selling, at retail, any items of merchandise ... at prices which are less than cost to the retailer as defined in the Oklahoma ‘Unfair' Sales Act’ and in violation of the provisions of said ‘Unfair Sales Act’, except to meet, in good faith the prices of competitors who are selling the same articles or products of comparable quality at cost to them as retailers as defined in the. Oklahoma ‘Unfair Sales Act’, and except in instances of other exempted sales as provided in Section 598.6 of said Oklahoma ‘Unfair Sales Act.’ ” • The injunction, phrased substantially in the terms- of the statute, allows Safeway to meet thq prices of competitors who are selling, “at cost to them” if the other requisites of the good faith defense are met. Appellant elf'ms that this injunction deprives it of a constitutional rigfli to compete since it forbids meeting the prices of competitors who are selling below- cost. There is no constitutional right to employ retaliation against action outlawed by a State. Safeway, the Oklahoma court held, had ample means, under the state statute, to enjoin the illegal methods of its competitors. It had no constitutional right to embark on the very kind of destructive price war the Act was designed to prevent. Appellant also claims that there are situations in which a competitor might reduce his prices, below cost without violating the Act, and hence, under the Injunction, Safeway would have no remedy whatsoever since it could not retaliate in kind and judicial relief would not be available. The conclusive answer to this claim is that it is not before us for adjudication. The court below found that Safeway was meeting prices it “knew or had reason to know” were illegal. It then phrased its injunction in the terms of a statute which has yet to be construed in the abstráct circumstances presented by appellant. The Oklahoma Supreme Court carefully noted that it was interpreting the Unfair Sales Act as applied to the particular facts of this case, pointing out that “until a proper factual case is presented which requires a clear determination and offers a practical situation in which all the conflicting problems and considerations of the area involved are apparent, this court will refrain from theorizing.” 322 P. 2d, at 181. If this is a rule of wise restraint for the courts of Oklahoma in this situation, it clearly bars constitutional adjudication here. 2. Appellant’s second contention involves its competitors’ use of trading stamps. Trading stamps, it hardly needs to be stated, are, generally speaking, coupons given by dealers to retail purchasers on the basis of the dollar value of the items purchased, e. g., one stamp for each ten cents’ worth of goods, and are collected by the purr-chaser until he has enough to redeem for various items of merchandise. Trading stamps have had a checkered career in the United States, but since World War II their popularity has grown until' now it is a reasonable estimate that, thesé multi-colored scraps of paper may be found in almost half of America’s homes. When this suit was brought Safeway did not use trading stamps. In the Oklahoma City-Midwest City area several of its competitors did. These stamps were deemed to be worth approximately 2.5 percent of the price of the goods with which they were given. Safeway contended in the Oklahoma courts that giving a trading stamp with goods sold at or near the statutory minimum resulted in an unlawful reduction below “cost” to the extent of the value of the trading stamp. To be specific, if an item sold for $1, and that price was statutory cost, the trading, stamps given with it would be worth approximately 2.5 cents and the net price was therefore $.975, or 2.5 cents below cost. Safeway sought to restrain its competitors from selling below cost in this manner and also claimed that it was justified, in order to meet competition, in reducing its prices to the net of its competitors’ prices, taking into account the value of trading stamps. The Oklahoma court found that the giving of trading stamps with items sold at or near statutory cost was not a violation of'the statute and denied Safeway’s request for an injunction. The court also decided that Safeway could not reduce its prices to meet the trading stamp competition. It did, however, provide that Safeway could do what appellees did, it might issue “trading stamps, cash register, receipts, or other evidence of credit issued as a discount for prompt payment of cash . . . ,” as long as the value of the discount did not exceed three percent. Safeway contends that such a construction of the Unfair Sales Act violates the Fourteenth Amendment. Appellant claims that even though the State may prohibit sales below “cost,” it is barred from allowing a merchant to give trading stamps with goods sold at or near “cost,” unless it allows competing merchants to make an equivalent price reduction. For the State to differentiate between the use of trading stamps and price-cutting is, so the argument runs, a constitutionally inadmissible discrimination. “It would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of the equal protection of the laws has been applied. The generalities on this subject are not in dispute; their application turns péculiarly on. the particular circumstances of a case.” Goesaert v. Cleary, 335 U. S. 464, 467. The Oklahoma court decided that, although price cuts below cost were prohibited by the statute, the use of trading stamps was not a price reduction, but constituted a cash discount, i. e., a reduction given to customers for prompt payment of cash. Opposing expert accountants sustained and rejected the validity of such a difference. In matters of this sort we might content ourselves in resting on the clash of expert opinion to show that the Oklahoma decision was not wanting in a foundation that may not unjustifiably have commended itself as a state policy. However, we may note some readily apparent differences between the practices which support the State’s differentiation and thereby the power asserted by the State. Trading stamps are given to cash customers “across the board;” namely, the number of stamps varies directly with the total cost of goods purchased. Safeway’s price-cutting, however, was selective. This difference is vital in the context of this Act. One of the chief aims of state laws prohibiting sales below cost was to put an end -to “loss-leader” selling. The selling of selected goods , at a loss in order to lure customers into the store is deemed not only a destructive means of competition; it also plays on the gullibility of customers by leading them to expect what generally is not true, namely, that a-store which offers such an amazing bargain is full of other such bargains. Clearly there is a reasonable basis for a conclusion that selective price cuts tend to perpetuate this abuse whereas the use of trading stamps does not. This difference alone, would be enough to require affirmance. It is reinforced by other tenable grounds for distinction; There was a basis in evidence for the view that the use of trading stamps has an entirely different impact on the consuming market than do price cuts. When prices are the same customers tend to go to the store offering trading stamps. But when prices are cut to the extent of -the value of the trading stamp the stamps lose their lure and lower prices prove a more potent attraction. On the basis of this not unreasonable belief as to the economics of the highly competitive, -low-profit-margin retail-grocery business, Oklahoma could well have concluded that its choice was to provide that all use a cash discount system or none could do so. Such a view of the economic aspects of the problem affords an ample basis for the legislative judgment enforced by the court below. Certainly this Court will not interpose its own economic views or guesses when the State has made its choice. “The Fourteenth Amendment enjoins the ‘equal protection of the laws,’ and laws are not abstract propositions. They do not relate to abstract units A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated ir. law as though they were the same.” Tigner v. Texas, 310 U. S. 141, 147. We are not concerned with the soundness of the distinctions drawn. It is enough that it is open to Oklahoma to believe them to be valid as the basis of. a policy for its people. Affirmed. Mr. Justice Clark took no part in the consideration or decision of this case. The Oklahoma Supreme Court said: “In this connection our attention has' been called to the recent case (10-4-57) of State by Clark v. Wolkoff, Minn., 85 N. W. 2d 401, 403, wherein it was held that ‘(I)f a merchant in good faith sets the price of an article-on the basis of a competitor’s price, which price he in good faith believes to be a legal price, there is no violation,’ which clearly is not the case herein. In the instant case, Safeway obviously and admittedly did not, in good faith, set the price of its articles which were subject to the Unfair Sales Act on the basis of its competitors’ prices, which it in good faith believed to be legal prices under the Unfair Sales Act, but on the contrary it set illegal prices for the sole purpose of meeting prices of its competitors, which it thought to be illegal.” 322 P. 2d, at 181. The latest chapter in trading stamp history was recounted in The [London] Economist for May 30, 1959, at p. 850: “In Colorado a proposal to tax the stamps brought .battalions of housewives to the state capital. One of its original sponsors changed his mind when his own mother threatened to campaign against his re-election if he did not alter his stand. The newest, twist to the trading stamp story is that they can now be exchanged, in the East, for a theatre seat, even, after July 12th; for one for 'My Fair Lady.’ This will take, however, the stamps accumulated on nearly $700 worth of purchases — about what it costs to feed a family for five month's.” Safeway, in fact, did offer its own cash discount coupons during the course of this litigation. This Court in other contexts has upheld, against a challenge based on the Fourteenth Amendment, state tax laws which discriminated against the use of trading stamps. Rast v. Van Deman & Lewis Co., 240 U. S. 342; Tanner v. Little, 240 U. S. 369; Pitney v. Washington, 240 U. S. 387. See the article by Mr. Brandéis, as he then was, in the November 15, 1913, issue of Harper’s Weekly, at p. 10. This would come about if the dealer using trading stamps were allowed to meet the lowered price, or if, by being required, to drop trading stamps, the other dealer were forced to raise prices. It is conceivable that. a mathematical formula might be developed to equalize the use of trading stamps and price cuts. But certainly the Constitution does not place such a complex and, at best, uncertain and speculative burden on the States. Appellant also claiTná that the Oklahoma law is pre-empted by fedéral antitrust laws. However, this claim was not made below. 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_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. James Louis REID, Defendant-Appellant. No. 16922. United States Court of Appeals Seventh Circuit. May 14, 1969. Roger P. Pascal, Thomas P. Luning, Chicago, Ill., James Louis Reid, in pro. per., for appellant. Carl W. Feickert, U. S. Atty., Jonathan J. Seagle, Asst. U. S. Atty., East St. Louis, Ill., for appellee. Before CASTLE, Chief Judge, CUMMINGS, Circuit Judge, and HOLDER, District Judge. . Judge Holder is sitting by designation from the United States District Court for the Southern District of Indiana. CUMMINGS, Circuit Judge. Defendant, a prison inmate, was tried twice on an indictment charging him with assaulting a federal penal institution employee engaged in the performance of his official duties. Self-defense was the justification offered. The first trial resulted in a hung jury, but two months later a second jury found defendant guilty. This appeal is from the three-year sentence imposed after his motion for a new trial was denied. The sentence was to run consecutively to a previous sentence being served. According to the evidence, about 9:30 p. m. on January 27, 1967, the prison authorities of the United States Penitentiary at Marion, Illinois, were investigating an altercation that had occurred earlier that evening. Defendant was reported to have had a weapon at that time. Therefore, the guard supervisor summoned defendant to his office for questioning. The search of defendant’s person disclosed no weapon, but one of the prison guards testified that he found a combination padlock with a rag attached to its hasp under the pillow in defendant’s cell. As a result, defendant was ordered to the segregation unit. While he was being escorted there by two guards, defendant admittedly struck one of them, Robert Meadows, at least once on the head. Defendant and another inmate, Don E. Grimes, testified that defendant struck Meadows because he was twisting defendant’s arm. On the other hand, three prison guards said that the assault was without provocation. Three days after this incident, FBI Agents Claude Grace and James Stewart interrogated defendant. They, testified that they warned him of his constitutional rights and read him the usual FBI waiver of rights form. According to their testimony, after defendant read the waiver of rights form, he signed it and then stated that he was “mad” and had assaulted Meadows without provocation. On the other hand, the defendant testified that he did not sign the waiver of rights form and that he made no statements to the FBI agents. He admitted that he had a lock in his cell, but claimed it had no rag or string attached to it. Such locks were normally issued to prisoners. According to Agent Stewart, defendant said the lock “was not a weapon and that the cloth tied to the hasp was not intended as a handle. He also said that there was no special purpose for having put this cloth on the hasp of the lock.” Defendant charges that four errors were committed that entitle him to a new trial. We have concluded that a new trial is necessary. Padlock Testimony Prior to trial, defendant moved for discovery of any weapons in the possession of the Government taken from his possession on January 27, 1967. The Government successfully opposed this motion on the ground that the requested objects were not material to the preparation of a defense. Before the start of the second trial, defense counsel objected to any reference to the padlock since he was not charged with its possession. This objection was refused as premature. After the second trial commenced and for the same reason, defendant’s counsel objected on several occasions to testimony about the padlock found in his cell. These objections were overruled, and the prosecutor exhibited the padlock with a piece of cloth tied to its hasp to the Government’s first witness, the supervisor of guards. He was permitted to testify that this was the padlock that was brought to his office and could have been used as a weapon. He also testified that such padlocks were issued to prisoners but not with the cloth “handle” attached to the hasp. At the close of this witness’s testimony, the district court sustained defendant’s objections to the admission of the padlock into evidence. However, the testimony concerning the padlock remained in evidence. Defendant was tried for assaulting a correctional officer by striking him with his fist. This is apparently the reason for the Government’s refusal to produce the lock before trial on the ground that such a weapon was not material to the preparation of a defense. The Government now seeks to justify its about face at trial as to the materiality of the lock by asserting that the lock was part of the res gestae of the crime, but even if we were to recognize that often criticized concept, the padlock was not so closely connected with the crime charged as to be admissible as part of the res gestae. The testimony reveals only that some altercation was under investigation and that defendant was reported to have a weapon in his possession. We do not know, and it was not the purpose of this trial to determine, whether defendant was even a participant in that altercation or whether any weapon was involved at all. While we agree with the trial judge’s ruling that the padlock was inadmissible, it was improper to permit the Government to circumvent this ruling by eliciting extensive testimony about the padlock, including an inflammatory expression of opinion about the probable use of the lock. Even had a curative instruction been given, it is unlikely that the jurors would distinguish between evidence which was identified and exhibited before them and exhibits formally admitted into evidence. The Government offers the suggestion that it was necessary to introduce the padlock testimony in order to establish a basis in fact for the guards’ authority to escort the defendant to punitive segregation. The Government’s brief volunteers that “Correctional officials who subject a prisoner to punishment in defiance of prison regulations do not come within the protection of the statute, as their actions are unauthorized.” Even if we were to accept this surprising invitation to prison inmates to resist with force a prison guard acting in furtherance of his orders if the inmate feels that the supervisor’s finding of wrongdoing is incorrect, such was not the theory of the defense in this case. Defendant claims that he struck the guard solely in order to defend himself against unprovoked physical abuse, not because of some real or imagined grievance against the supervisor’s order that he be subjected to solitary confinement for violation of prison regulations concerning the padlock. We can only regard the testimony concerning the lock as highly prejudicial and without probative value. Its presence could only serve to invite the jury to speculate about other bad acts which the defendant may have committed. The introduction of testimony concerning dangerous weapons found among the belongings of a person charged with a crime, no part of which depends upon the use or ownership of the weapon, has consistently been regarded as prejudicial error requiring a new trial. Thomas v. United States, 376 F.2d 564, 567 (5th Cir. 1967); Moody v. United States, 376 F.2d 525, 532 (9th Cir. 1967); Brubaker v. United States, 183 F.2d 894, 898 (6th Cir. 1950). Only where there is independent evidence tending to relate the use of the weapon to the commission of the offense has the introduction of such evidence been permitted. United States v. Blackburn, 389 F.2d 93, 95-97 (6th Cir. 1968). We hold that this evidence was unduly prejudicial and inflammatory and that no reference to it may be permitted at the next trial. Denial of Credibility Instruction At the conference on instructions, defendant tendered the following credibility instruction No. 3: “The Court instructs the jury that the testimony offered by officers shall not be given any greater weight or credibility by the fact alone of their office, but that such testimony shall be weighed and considered as to credibility on the same ground and for the same reason that the testimony of all other witnesses are weighed and judged.” Even though the Government had no objections to this instruction, the district court declined to give it, stating: “I am going to refuse it, because I am already giving one on credibility of witnesses, which includes all witnesses, and I am not singling out a particular witness, which I would be doing here.” The court did instruct the jurors on the credibility of all witnesses, admonishing them to determine: “ * * * whether or not [each witness] had a particular prejudice or biasness or feeling in the outcome of the case. Consider the,witness’s relationship to the Government or to the defendant; * * However, the court thereafter singled out the defendant’s credibility by instructing the jury: “ * * * You have a perfect right and it is your duty to take into consideration the fact that he is the defendant and that he is interested in the outcome of the case. * * * his interest, prejudice, biasness, result of the outcome of the case or anything else may affect his testimony.” In this case, the outcome depended upon whether the jury believed defendant’s or the officers’ versions of the assault. As the hung jury in the first trial indicated, the credibility issue was indeed the whole case. Therefore, it was essential for the trial judge to present evenly balanced instructions as to the possible bias of both Government and defense witnesses. The question is “whether it can fairly be said that the instruction singles out or unmistakably refers or draws attention to” the defendant. United States v. Kahn, 381 F.2d 824, 835 (7th Cir. 1967), certiorari denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661. Here the prosecutor took every opportunity to emphasize the inherent credibility of the testimony of the Government’s employees. The instruction tendered by the defendant did not advise the jury that the testimony of Government agents should be received with “caution” as in Golliher v. United States, 362 F.2d 594, 604 (8th Cir. 1966), or with “suspicion” as in Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602, 604-605 (1967). The courts in those cases properly rejected arguments that such special instructions singling out Government witnesses were mandatory. Nor are we asked to hold that an instruction on the defendant’s interest in the outcome of the case is reversible error per se. See Taylor v. United States, 390 F.2d 278, 285 (8th Cir. 1968), certiorari denied, 393 U.S. 869, 89 S.Ct. 155, 21 L.Ed.2d 137. Defendant argues that under the circumstances of this case and in light of the prosecutor’s repeated emphasis on official truthfulness, it was reversible error to instruct the jury on the defendant’s possible “interest, prejudice, biasness” while refusing to instruct that Government witnesses are not entitled to any special credibility by the fact of their office alone. An instruction such as that tendered by defendant was approved in Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602, 605, note 6 (1967). Here the general credibility instruction referred to the witness’s relationship to the Government or to the defendant, but in the absence of an instruction such as that tendered by the defendant, the jury might have been led to believe by the prosecutor’s final argument that relationship to the Government was an assurance of trustworthiness, while the special instruction as to the defendant’s interest in the outcome served to impress upon the jury that relationship to the defendant cast doubt upon the reliability of testimony. We hold only that the instructions given, in conjunction with the refusal of defendant’s instruction No. 3, presented an unbalanced picture to the jury which was, on the special facts of this case, prejudicial error. Impropriety of Government’s Closing Argument In his closing argument, defense, counsel reminded the jury that the FBI agents did not show defendant the statements he allegedly gave them at the time of the interview in the prison, apparently intending to cast doubt on the authenticity of the statements, which defendant denied ever having made. Defense counsel also complained that it was not right for Agent Stewart “to make use of a statement [the dictated FBI notes of defendant’s oral admissions] and then a year later refresh his recollection from his statement without that statement being submitted to the defendant so that he can read it to himself.” In response, the Assistant United States Attorney told the jury that the FBI’s report of defendant’s admissions was “given to the defendant prior to trial, and he knew exactly what the Government was going to say in this case.” Defendant here argues that by so doing the prosecutor introduced a fact not in evidence. The assertion of prejudice resulting from this action is unconvincing. In any event, in view of . the ambiguity of defense counsel’s argument, the jury could construe the prosecutor’s closing remarks to be a fair response thereto. Moreover, the district court sustained defense counsel’s objections to this material, and the jury was instructed to disregard it. In this setting, it was unnecessary to direct a mistrial. Keeble v. United States, 347 F.2d 951, 956 (8th Cir. 1965). However, at the retrial, both sides can be depended upon to avoid a similar incident. Failure to Hold Hearing on Admissibility of Defendant’s Statements Finally, defendant urges that under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, it was incumbent upon the trial judge to hold a hearing out of the presence of the jury and to make a preliminary determination as to the voluntariness of defendant’s statements to the FBI agents. However, defendant neither requested such a hearing nor objected to the introduction of his oral admissions. In United States v. Taylor, 374 F.2d 753 (7th Cir. 1967), this Court delineated certain circumstances that might require a trial judge to hold such a hearing sua sponte, stating (at p. 756): “Certain alerting circumstances, such as a defendant’s apparent abnormal mental or physical condition, obvious ignorance, or lack of awareness —all of which may reveal a dereliction in defense counsel’s failure to object to the introduction of a confession — may, under due process standards, require a trial judge to investigate the necessity of conducting a hearing notwithstanding the absence of an objection.” Neither the trial judge nor we have perceived here any of the “alerting circumstances” mentioned in Taylor. The FBI agents testified that they read defendant the waiver of rights form and that he also read it before executing it, after háving been fully apprised of his constitutional rights. Cf. Townsend v. Henderson, 405 F.2d 324, 327, 328-329 (6th Cir. 1968). Unlike United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968), where “an appropriate objection” was taken (392 F.2d at p. 852), this defendant may have freely waived his constitutional rights to remain silent and consult an attorney before making the damaging statements. However, the Government concedes that under Jackson v. Denno, supra, “the trial court could not have properly refused a request by the defendant for a hearing on the issue of whether a Fifth Amendment ground prevented the admission of his confession.” This issue will therefore be left open for the district court’s consideration on retrial. Roger P. Pascal of the Chicago Bar was appointed to serve as defendant’s counsel in this Court. He has conscientiously and diligently presented defendant’s appeal. Reversed and remanded. . The indictment was brought under Sections 111 and 1114 of the Criminal Code (18 U.S.C. §§ 111 and 1114). . Even if the padlock testimony had been relevant, under Rule 4-03 of the proposed Federal Rules of Evidence, it would not be “admissible if [as here] its probative value is substantially outweighed by the danger of unfair prejudice, * * Preliminary draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, 46 F.R.D. 161, 225 (1969). . The motion for a new trial asserted that defendant was substantially prejudiced by reason of the admission of his statements to the agents, but the motion did not claim that the district court erred in not holding a voir dire hearing as to the vol-untariness of his statements, 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_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. AMERICAN FIDELITY & CASUALTY CO., Inc., v. BAILEY et al. No. 3814. Circuit Court of Appeals, Fourth Circuit April 10, 1935. R. E. O’Connor, of Charleston, W. Va., and Thomas B. Gay, of Richmond, Va. (D. H. Hill Arnold, of Elkins, W. Va., on the brief), for appellant. E. Bailey Wyckoff, of Grafton, W. Va. (O. E. Wyckoff, of Grafton, W. Va., on the brief), for appellees. Before PARKER and NORTHCOTT, Circuit Judges, and WAY, District Judge. PARKER, Circuit Judge. Plaintiff was injured in the year 1928 while riding in a passenger bus operated by the Bartlett Bros. BuS Company. She brought suit against the bus company for damages in the circuit court of Taylor county, W. Va., and secured a judgment for the sum of $12,500, notwithstanding a plea by the company that she was a gratuitous passenger riding on a pass which precluded the holder from recovering from the company on account of injuries. This judgment was affirmed by the Supreme Court of Appeals of West Virginia in Bailey v. Bartlett, 112 W. Va. 27, 163 S. E. 615. Plaintiff, being unable to collect the judgment on account of the insolvency of the bus company, brought this suit against the company and the American Fidelity & Casualty Company, the carrier of its liability insurance, to recover under the insurance policy which provides for recovery by the person injured in cases where the insured is insolvent. The insurance company, which had defended the original suit in behalf of the bus company, filed answer in this suit again setting up that plaintiff was riding upon a pass at the time of her injuries and was not entitled to recover for that reason. The District Court sustained a motion to strike this allegation from the answer and rendered judgment on the pleadings against the insurance company for the amount of its liability under the policy, viz., $5,000, with interest and cost, or a total of $6,253.35. From this judgment the insurance company has appealed. The insurance company contends that its policy does not cover the claim of plaintiff, as she was a gratuitous passenger riding upon a pass. The argument is that the policy was issued to cover the motor vehicle of the bus company only when used for the transportation of passengers for compensation, and therefore does not insure against injury to a nonpaying passenger. An additional contention is that the granting of a free pass to a person not an employee was a violation of chapter 150, section 6, of the West Virginia Code of 1923, and constituted a fraud on the company which would avoid the policy under condition K thereof, which is as follows: “K. This policy shall be void if the assured or his agent has concealed or misrepresented in writing or otherwise any material fact or circumstances concerning this insurance or the subject thereof or if the assured or his agent shall make any attempt to defraud the Company, either before or after the loss or if the assured shall have incurred any loss, during any breach of the statements expressed in the schedule, and/or any violation of the conditions of the policy.” There is nothing in either of the contentions of plaintiff. That the carrying of a passenger on a free pass is not a fraud on the insurance company within the meaning of the condition of the policy which we have quoted, is too clear for argument. And we think it equally clear that the policy covers liability of the bus company to a passenger riding on a pass as well as to other persons injured by its negligence. It is not the fact that a particular passenger pays compensation that fixes liability under the policy, but the fact that the bus is one operated by the bus company for compensation. When, it is so operated, any liability of the company (except liability to employees, which is expressly excepted) for damages to person or property “by reason of the ownership, maintenance, or use” of such vehicle is covered by the policy. A statute of West Virginia requires that, as a prerequisite to the granting of a license for the operation of a vehicle of this character, bond or liability insurance shall be required which shall bind the obligors “to make compensation lor injury to persons and loss of or damage to property resulting from the operation of such motor vehicles.” Code of W. Va., ch. 17, art. 6, § 6. The policy here sued on was issued pursuant to the requirement of this statute, and bears the following indorsement: “The purpose of this endorsement is to make certain during the term oE the policy to which this endorsement is attached the liability of the company for any injury to person or damage to property as a result of the operation of motor vehicles for the transportation of passengers for compensation, and shall be construed in accordance with the provision of law enacted by the Legislature of West Virginia, requiring insurance or bond covering such operation, and of the rules and regulations regularly adopted by the state road commission of West Virginia.” Appellee has -made a motion under paragraph 2 of rule 30 of this court that we assess damages against appellant on the ground that the appeal has been prosecuted merely for purposes of delay. While we think that the questions raised by the appeal are without substantial merit, w£ do not think that we would be justified in holding that the appeal has been sued out merely for delay, and, in view of the fact that much of the delay arising from the appeal might have been avoided by diligence on the part of the appellee, we feel that any assessment of damages under the rule would not be warranted in any event. We feel that we should say, however, that in our opinion there has been too much delay in the handling of this case. The fact that seven years have now elapsed since plaintiff’s injury, and that plaintiff has not yet received the damages which the statute of West Virginia was intended to assure her, is a circumstance which speaks for itself. That further delay may be obviated, we shall shorten to fifteen days the time allowed for issuance of mandate herein, and shall not extend the time unless application for certiorari is made to the Supreme Court within that period, to the end that, if stay of mandate is desired pending application for certiorari, petition for certiorari will necessarily be presented to the Supreme Court in time for that court to give consideration thereto before the adjournment of the present term. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_usc1	28	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. Eleanore J. EVANS, Plaintiff-Appellant, v. UNITED STATES VETERANS ADMINISTRATION HOSPITAL, Defendant-Appellee. No. 296, Docket 31615. United States Court of Appeals Second Circuit. Argued Jan. 24, 1968. Decided March 6, 1968. Eleanore J. Evans, pro se. Joel A. Forkosch, Asst. U. S. Atty., New York City (Alan G. Blumberg, Asst. U. S. Atty., and Robert M. Morgenthau, U. S. Atty., for the Southern District of New York, New York City, on the brief), for defendant-appellee. Before MEDINA, MOORE and ANDERSON, Circuit Judges. PER CURIAM: Eleanore J. Evans appeals from a judgment of the United States District Court for the Southern District of New York, Herlands, J., which dismissed her complaint against a United States Veterans Administration Hospital. The Court below correctly determined that the Hospital was immune from suit since it is well established that a Veterans Administration Hospital, as an instrumentality of the Veterans Administration, cannot be sued in its own name. Fermin v. Veterans Administration, 312 F.2d 554 (9th Cir.), cert. denied 375 U.S. 864, 84 S.Ct. 135, 11 L.Ed.2d 91 (1963); Suess v. Pugh, 245 F.Supp. 661 (N.D.W.Va.1965); Napier v. Veterans Administration, 187 F.Supp. 723 (D.N.J.1960), aff’d 298 F.2d 445 (3rd Cir. 1962), cert. denied 371 U.S. 186, 83 S.Ct. 266, 9 L.Ed.2d 228 (1962). Furthermore, plaintiff is foreclosed from amending her complaint to add the United States as a party and thereafter proceeding under the Federal Tort Claims Act, since the two year period of limitations under the federal statute has already run. 28 U.S.C. Section 2401. Finally, Rule 15(c) of the Federal Rules of Civil Procedure which allows a claimant to amend a complaint to add a party and still have the amendment relate back to the date of the original pleading, is inapplicable here. In the instant case no notice of the pendency of the claim was given to the United States within the limitations period of the Federal Tort Claims Act. Affirmed. . Rule 15. Amended and Supplemental Pleadings * * * * * (c) Relation Baelc of Amendments * * * An amendment changing the party against whom a claim is asserted relates back if * * * within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. . The original complaint filed in the District Court on June 14, 1963 was not delivered by the plaintiff to the United States Marshal for service until February 1, 1967. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_caseoriginstate	37	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. UNITED STATES v. AETNA CASUALTY & SURETY CO. NO. 35. Argued October 19-20, 1949. Decided December 12, 1949. Leavenworth Colby argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Samuel D. Slade and Joseph Kovner. William A. Hyman argued the cause for respondent in No. 35. With him on the brief were Harold W. Hay-man and Melville Harris. By special leave of Court, Jackson G. Akin, pro hac vice, argued the cause for respondent in No. 36. Pearce C. Rodey was on the brief. Abraham Frankel argued the cause and filed a brief for respondents in Nos. 37 and 38. Mr. Chief Justice Vinson delivered the opinion of the Court. These cases, here on certiorari, present this important question under the Federal Tort Claims Act: May an insurance company bring suit in its own name against the United States upon a claim to which it has become subrogated by payment to an insured who would have been able to bring such an action? That question, in turn, requires our consideration of R. S. 3477, the “anti-assignment” statute. Three cases, each presenting a slightly different aspect of the problem, were heard by the Court. In No. 35, the complaint alleges that an employee of the Federal Reserve Bank of New York was injured as a result of the negligence of a United States Post Office Department employee. Respondent insurance carrier had insured the Federal Reserve Bank against its liability for workmen’s compensation, and duly paid the injured person’s claim under the New York. Workmen’s Compensation Law. The complaint further alleges that the injured person failed to commence any action against the United States within one year after the accident, and that his inaction operated, according to New York law, as an assignment to the insurer of his cause of action against the United States. The District Court dismissed the complaint, 76 F. Supp. 333, but the Court of Appeals for the Second Circuit reversed and remanded the cause for trial. 170 F. 2d 469. In No. 36, the Government’s motion to dismiss the complaint was denied, and, after trial, it was found as fact that an employee of the United States Forest Service had negligently driven a Government vehicle into a vehicle owned by one Harding, causing damages of $1,484.50; that Harding was insured by the respondent insurance carrier and, pursuant to the terms of the policy, had been paid $784.50 by the insurer, to which it was now subrogated. Judgment was thereupon entered against the United States in favor of Harding for $700.00 and in favor of respondent insurance company for $784.50. The Court of Appeals for the Tenth Circuit affirmed. Nos. 37 and 38 present the situation in which two insurance companies, each of which has paid part of a claim of loss occasioned by the negligence of an employee of the United States, bring suits in their own names, each asking recovery of the amount it has paid to the assured. The District Court dismissed the complaints on motion of the Government, but the Court of Appeals for the Third Circuit reversed and remanded the causes. 171 F. 2d 374. We granted certiorari in these cases, 336 U. S. 960, because of a conflict of decisions in the circuits and the manifest importance of the question. The Federal Tort Claims Act provides in pertinent part that “. . . the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, . . . sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, ... on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this chapter, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances . ...” While the language of the Act indicates a congressional purpose that the United States be treated as if it were a private person in respect of torts committed by its employees, except for certain specific exceptions enumerated in the Act, neither the terms of the Act nor its legislative history precludes the application of R. S. 3477 in this situation. It is the Government’s position that R. S. 3477, which in terms makes “All transfers and assignments ... of any claim upon the United States, or of any part or share thereof, or interest therein . . . absolutely null and void . . .” except for assignments made after payment of the claim and in accordance with certain prescribed safeguards, includes assignments by operation of law and prohibits suit by the subrogee in its own name. Petitioner reads R. S. 3477 not as prohibiting transfer of a claimant’s substantive rights to an insurer-subrogee and ultimate recovery by the insurer but as a procedural requirement that the insurance carrier sue and recover judgment in the name of the original claimant. United States v. American Tobacco Co., 166 U. S. 468 (1897). Its purpose in invoking the anti-assignment statute is said to be two-fold: “(1) to insure that the United States may avoid involvement in any litigation as to the existence or extent of subrogation or other assignment of such claims; and (2) to insure that the suits and any judgments against the United States will be in the names of the original claimants so that the United States will be able to avail itself of its statutory rights in respect of venue, and of counterclaim and offset on account of any cross-claims it may have against the original claimants.” It is pointed out that “the provisions of the statute making void an assignment or power of attorney by a Government contractor are for the protection of the Government. Hobbs v. McLean, 117 U. S. 567, 576; McGowan v. Parish, 237 U. S. 285, 294, 295. In the absence of such a rule, the Government would be in danger of becoming embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability.” Martin v. National Surety Co., 300 U. S. 588, 594 (1937). The Government contends that the inconvenience, administrative and accounting difficulties, and procedural problems which, it is apprehended, may involve the Government if subrogees are permitted to bring suits under the Tort Claims Act in their own names make this an apt situation for application of R. S. 3477, and that that was the congressional intent. It should be noted at the outset, however, that in the courts below and until argument in this Court (and even in its petition for certiorari) the Government contended that R. S. 3477 was a complete bar to recovery by a subrogee. Only in brief and argument here was it suggested that the insurance carrier could recover if suit was brought in the name of the insured to the use of the insurer, citing for the first time United States v. American Tobacco Co., supra, a decision reflecting common-law procedure, upon which reliance is now placed. It is for that reason that the opinions below were focused upon whether R. S. 3477 is an absolute bar to recovery by the subrogee rather than merely a bar to recovery in the name of the subrogee. We think, however, that even this limited, and somewhat anomalous, reliance upon R. S. 3477 is untenable, first, because of the uniform interpretation given that statute by this Court for the past 75 years, and, second, because of many affirmative indications of congressional intent that subrogation claims should not be excluded from suit in the name of the subrogee under the Tort Claims Act. R. S. 3477 was enacted in 1853 as part of a statute entitled “An Act to prevent Frauds upon the Treasury of the United States.” Its primary purpose was undoubtedly to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government. Spofford v. Kirk, 97 U. S. 484, 490 (1878). Another purpose, that upon which the Government now relies, has been inferred by this Court from the language of the statute. That purpose was to prevent possible multiple payment of claims, to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant. Spofford v. Kirk, supra; Goodman v. Niblack, 102 U. S. 556, 560 (1881). Most of the early cases construed the statute strictly, holding that all assignments were included within the statute and that such assignments conferred no rights of any kind upon the assignee; that R. S. 3477 “incapacitates every claimant upon the government from creating an interest in the claim in any other than himself.” Spofford v. Kirk, supra, pp. 488-89. See also National Bank of Commerce v. Downie, 218 U. S. 345 (1910); Nutt v. Knut, 200 U. S. 12 (1906); St. Paul & Duluth R. Co. v. United States, 112 U. S. 733 (1885). The rigor of this rule was very early relaxed in cases which were thought not to be productive of the evils which the statute was designed to obviate. And one of the first such exceptions was to transfers by operation of law. In United States v. Gillis, 95 U. S. 407 (1877), the Court held that a provision in the Act creating the Court of Claims that suits on assignments may be brought in the name of the assignee did not mean that R. S. 3477 was inapplicable to suits in the Court of Claims, but referred to claims which were excepted from the prohibition of that statute, such as “devolutions of title by force of law, without any act of parties, or involuntary assignments, compelled by law.” During the following term a case was presented in which an assignee in bankruptcy had sued the United States on a claim of the bankrupt. This Court held the suit maintainable despite R. S. 3477, on the ground that “The act of Congress of Feb. 26, 1853, to prevent frauds upon the treasury of the United States, which was the subject of consideration in the Gillis Case, applies only to cases of voluntary assignment of demands against the government. It does not embrace cases where there has been a transfer of title by operation of law. The passing of claims to heirs, devisees, or assignees in bankruptcy are not within the evil at which the statute aimed; nor does the construction given by this court deny to such parties a standing in the Court of Claims.” Erwin v. United States, 97 U. S. 392, 397 (1878). This construction of R. S. 3477 — that assignments by operation of law are not within the prohibition of the statute — was recognized as settled law in Goodman v. Niblack, supra, and has been repeated with approval in a great many subsequent cases. The Government now contends, contrary to the statements in all of the cases approving Erwin v. United States, supra, that an assignment by operation of law is not always exempt from the bar of R. S. 3477, but that in addition the assignment must be of a kind that will not involve the Government in the procedural difficulties previously referred to. All of the cases in which R. S. 3477 has been held inapplicable on the ground of assignment by operation of law are explained as presenting situations in which the Government could suffer no such procedural embarrassments. In cases of transfer by descent (Erwin v. United States, supra), consolidation of corporations (Seaboard Air Line R. Co. v. United States, 256 U. S. 655 (1921)), and purchase at a judicial sale in a corporate reorganization (Western Pacific R. Co. v. United States, 268 U. S. 271 (1925)) it is pointed out that the Government may deal with the substituted representative as it would have dealt with the claimant if there had been no substitution. Rights of counterclaim and set-off are said to be retained against the universal successor, while such universal assignments by operation of law can give rise to no controversies as to the existence and extent of the transfer for adjudication between the United States and the original claimant and his trustee, receiver, or administrator. Without considering whether some of the cases are not comprehended within this rationale, we do not think that it explains the exception made for transfers by operation of law in the cases referred to. In the first place, the Court has always stated the fiat exception of all transfers by operation of law, as distinguished from voluntary transfers. If the cases rest upon the premise advanced by the Government, it has never been articulated in the opinions. In the second place, and consistent with the exception of all transfers by operation of law, this Court has a number of times indicated that neither of the purposes of R. S. 3477 is contravened by transfers by operation of law. In Goodman v. Niblack, supra, it was held that: “The language of the statute, ‘all transfers and assignments of any claim upon the United States, or of any part thereof, or any interest therein,’ is broad enough (if such were the purpose of Congress) to include transfers by operation of law, or by will. Yet we held it did not include a transfer by operation of law, or in bankruptcy, and we said it did not include one by will. The obvious reason of this is that there can be no purpose in such cases to harass the government by multiplying the number of persons with whom it has to deal, nor any danger of enlisting improper influences in advocacy of the claim, and that the exigencies of the party who held it justified and required the transfer that was made.” (102 U. S. at 560; italics added.) See also Hager v. Swayne, 149 U. S. 242, 247-48 (1893). The fact that some administrative problems may be the unintended by-products of an involuntary assignment was not thought to be an evil within the scope of a statute aimed at fraud and harassment. That interpretation has, for nearly a century, exempted all transfers by operation of law from the prohibition of R. S. 3477. That it was the understanding of Congress that subrogation claims were not within the bar of R. S. 3477 when it passed the Tort Claims Act is abundantly clear from a number of different particulars: 1. The Small Tort Claims Act of 1922 provided that heads of departments may “consider, ascertain, adjust, and determine any claim ... on account of damages to or loss of privately owned property where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment.” Such claims as were found due were certified to Congress for payment. A question was directed to the Attorney General in 1932 as to “whether such a claim, which if made by the owner of the property damaged could have been certified, may properly be certified if made by an insurance company which has become subrogated to the rights of the owner to receive compensation for the damage suffered.” Attorney General Mitchell’s opinion was: (1) that subrogation is a transfer by operation of law of the right to receive payment of the amount due; and (2) that R. S. 3477 applies only to cases of voluntary assignment of demands against the Government. He thought, however, that inasmuch as the question was one concerning the purpose and intent of Congress in enacting the Small Tort Claims Act, that body should be asked to interpret the statute by passing upon subrogation claims certified to it and expressly called to its attention. Thereafter subrogation claims in the names of insurance carriers were regularly submitted to Congress and were consistently approved until the Act was repealed by the present Tort Claims Act. The Attorney General’s opinion was approved and congressional acquiescence noted by the Comptroller General in opinions in 19 Comp. Gen. 503, 21 Comp. Gen. 341, and 22 Comp. Gen. 611. A unique interpretation by Congress of its own statute thus settled the question whether R. S. 3477 was a bar to subrogation claims under the Small Tort Claims Act, which, in language nearly identical with that of the present Tort Claims Act, permitted recovery “on account of damages to or loss of privately owned property . . . .” 2. That specific reference in the statute was necessary to preclude recovery by subrogees in their own names (i. e., that R. S. 3477 is inapplicable to subrogees) was clearly the view of Congress when it enacted the Tort Claims Act. For in foreign claims legislation where it intended that result, Congress explicitly provided that Claims Officers should consider, ascertain, determine, and pay claims on account of injury or death, or property loss or damage to claimants in foreign countries, “including claims of insured but excluding claims of subrogees.” The purpose of this provision, which was enacted in 1943, was to fulfill the very office which petitioner now contends is performed by R. S. 3477. No such exception is found in the Tort Claims Act, although other exceptions are spelled out with great particularity. The significance of this provision in the foreign claims statute is, first, that when Congress wished to exclude claims by subrogees it said so; and second, that Congress did not think R. S. 3477 performed that function. For a similar provision, see 49 Stat. 2194. 3. Nor did executive departments themselves interpret R. S. 3477 as applicable to subrogation claims, as the report of the hearings on H. R. 6442, 77th Cong., 2d Sess. (1942) makes plain. That bill, which was drafted by the Treasury Department, would have required subrogees to institute actions against their subrogors in some court of competent jurisdiction, which would then restrain the original claimant from receiving any funds from the Government until final decision was reached as to who was to receive the money. The Assistant General Counsel of the Treasury, in explaining the bill, stated: “In 1877 the Supreme Court, in the ease of U. S. v. Gillis (95 U. S. 407), after stating in effect that section 3477 was of universal application and covered all claims against the United States in every tribunal in which they might be asserted, indicated in language not necessary to the decision that transfers or assignments compelled by law or resulting from the operation of law might not have been within the purview of section 3477. “Now from that time on one exception after another has been carved from section 3477, until now the courts recognize many types of adverse claims as the basis for what in effect are third-party suits against the Government, including suits based upon assignments by operation of law, subrogation, and equitable liens.” Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, on H. R. 6442, 77th Cong., 2d Sess. (1942), at p. 3. It cannot therefore be seriously contended that Congress and the executive departments were not cognizant of the exemption of subrogation claims from R. S. 3477 when the Tort Claims Act was passed. The broad sweep of its language assuming the liability of a private person, the purpose of Congress to relieve itself of consideration of private claims, and the fact that subrogation claims made up a substantial part of that burden are also persuasive that Congress did not intend that such claims should be barred. If, then, R. S. 3477 is inapplicable, the Government must defend suits by subrogees as if it were a private person. Rule 17 (a) of the Federal Rules of Civil Procedure, which were specifically made applicable to Tort Claims litigation, provides that “Every action shall be prosecuted in the name of the real party in interest,” and of course an insurer-subrogee, who has substantive equitable rights, qualifies as such. If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2d ed.) p. 1339. If it has paid only part of the loss, both the insured and insurer (and other insurers, if any, who have also paid portions of the loss) have substantive rights against the tortfeasor which qualify them as real parties in interest. In cases of partial subrogation the question arises whether suit may be brought by the insurer alone, whether suit must be brought in the name of the insured for his own use and for the use of the insurance company, or whether all parties in interest must join in the action. Under the common-law practice rights acquired by subrogation could be enforced in an action at law only in the name of the insured to the insurer’s use, Hall & Long v. Railroad Companies, 13 Wall. 367 (1872); United States v. American Tobacco Co., supra, as was also true of suits on assignments, Glenn v. Marbury, 145 U. S. 499 (1892). Mr. Justice Stone characterized this rule as “a vestige of the common law’s reluctance to admit that a chose in action may be assigned, [which] is today but a formality which has been widely abolished by legislation.” Aetna Life Ins. Co. v. Moses, 287 U. S. 530, 540 (1933). Under the Federal Rules, the “use” practice is obviously unnecessary, as has long been true in equity, Garrison v. Memphis Insurance Co., 19 How. 312 (1857), and admiralty, Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 462 (1889). Rule 17 (a) was taken almost verbatim from Equity Rule 37. No reason appears why such a practice should now be required in cases of partial subrogation, since both insured and insurer “own” portions of the substantive right and should appear in the litigation in their own names. Although either party may sue, the United States, upon timely motion, may compel their joinder. Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 488 (1890) (applying a state code under the Conformity Act). 3 Moore, Federal Practice (2d ed.) p. 1348. Both are “necessary” parties. Rule 19 (b), Federal Rules of Civil Procedure. The pleadings should be made to reveal and assert the actual interest of the plaintiff, and to indicate the interests of any others in the claim. Additional parties may be added at any stage of the proceedings, on motion of the United States, upon such terms as may be just. Rule 21. It is true that under this rationale, there will be cases in which all parties cannot be joined because one or more are outside the jurisdiction, and the court may nevertheless proceed in the action under Rule 19 (b). In such cases the United States, like other tortfeasors, may have to defend two or more actions on the same tort and may be unable to assert counterclaims and offsets against the original claimant upon unrelated transactions. If R. S. 3477 is inapplicable, as we think is clearly the case, these objections have no legal foundation upon which to rest. In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo’s statement in Anderson v. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30: “The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.” The decision of the Court of Appeals in each of these cases is Affirmed. Mr. Justice Black dissents. Mr. Justice Douglas took no part in the consideration or decision of this case. 60 Stat. 842; formerly codified as 28 U. S. C. § 931 et seq. The new Judicial Code became effective on Sept. 1, 1948, while these actions were pending on appeal, and the provisions formerly embodied in the Tort Claims Act are now distributed through various chapters of the new Code. 10 Stat. 170 as amended; 31 U. S. C. § 203. When this action was brought, § 29 of the New York Workmen’s Compensation Act provided that if an injured employee has taken compensation but has failed to commence action against the tortfeasor within one year after the cause of action accrued, “such failure shall operate as an assignment of the cause of action against such other ... to the person, association, corporation, or insurance carrier liable for the payment of such compensation.” Courts of Appeals in seven circuits have upheld the right of subrogees to sue under the Tort Claims Act. State Farm Mutual Liability Insurance Co. v. United States, 1st Cir., 172 F. 2d 737; Aetna Casualty & Surety Co. v. United States, 2d Cir., 170 F. 2d 469; Yorkshire Insurance Co. v. United States, 3d Cir., 171 F. 2d 374; United States v. South Carolina State Highway Dept., 4th Cir., 171 F. 2d 893; Old Colony Insurance Co. v. United States, 6th Cir., 168 F. 2d 931; National American Fire Insurance Co. v. United States, 9th Cir., 171 F. 2d 206; United States v. Chicago, R. I. & P. R. Co., 10th Cir., 171 F. 2d 377. The Court of Appeals for the Fifth Circuit reached a contrary conclusion, United States v. Hill, 171 F. 2d 404, Judge Hutcheson dissenting. Reargument was ordered before the full bench and, upon reconsideration, the original opinion was modified, 174 F. 2d 61, Judge Hutcheson concurring in the result “as in substantial accordance with the views the dissent expressed.” Formerly 28 U. S. C. § 931. This section is now divided and, with immaterial changes, appears in 28 U. S. C. §§ 1346 (b) and 2674. See 28 U. S. C. § 2680. This contention was also made in reargument of United States v. Hill, before the Court of Appeals for the Fifth Circuit, which took place after certiorari was granted by this Court. See note 4. Petitioner’s argument is, in effect, that R. S. 3477 does not prevent the assignment of substantive rights against the United States but merely controls the method of procedure by which the assignee may recover. This position is in square conflict with Spofford v. Kirk, 97 U. S. 484, and is not justified by anything said in Martin v. National Surety Co., 300 U. S. 588. Furthermore, it would require that the real party in interest provisions of the Federal Rules of Civil Procedure, Rule 17 (a), be disregarded, despite the fact that they are made specifically applicable to suits under the Tort Claims Act, and that suits against the Government in which a subrogee owns the substantive right be conducted according to the old common-law procedures in effect prior to the promulgation of the Federal Rules. Petitioner admits as much by its reliance upon United States v. American Tobacco Co., 166 U. S. 468. This is not to say that R. S. 3477 was “repealed” by the Federal Rules, but that a new interpretation of the statute which is incompatible with the Rules, as expressly incorporated in the Tort Claims Act, must be clearly justified. 10 Stat. 170. Other sections of the Act made it unlawful for officers of the United States or Members of Congress to have any interest in claims against the Government or to act for claimants, penalized bribery or undue influencing of Members of Congress, and prohibited the destruction or withdrawal of public records. See, e. g., St. Paul & Duluth R. Co. v. United States, 112 U. S. 733, 736; Butler v. Goreley, 146 U. S. 303, 311; Hager v. Swayne, 149 U. S. 242; Ball v. Halsell, 161 U. S. 72, 79; Price v. Forrest, 173 U. S. 410, 421; National Bank of Commerce v. Downie, 218 U. S. 345, 356; Western Pacific R. Co. v. United States, 268 U. S. 271, 275. For example, transfers by will or intestacy, which are not within the prohibition of R. S. 3477 under the cases, would obviously multiply the persons with whom the United States must deal and might very well embroil it in conflicting claims. 42 Stat. 1066, 31 U. S. C. § 215. Reported at 36 Op. Atty. Gen. 553. See Holtzoff, Handling of Tort Claims Against the Federal Government, 9 Law & Contemp. Prob. 311, 318; The Federal Tort Claims Act, 42 Ill. L. Rev. 344, 349. 57 Stat. 66, 31 U. S. C. § 224d. The House Committee Report states that “Such a provision of law leaves undisturbed, as between the parties, the rights of the insured and of insurance companies and others who have become subrogated to the rights of the owners of the property or of the person who is injured or whose death results, but permits the Government to settle with a single claimant and without the necessity of inquiry into, or determination of, the relative rights of the parties.” H. R. Rep. No. 312, 78th Cong., 1st Sess., p. 2. That members of the House Committee on Claims were aware of the problem of recovery by insurance carrier-subrogees at the time the Tort Claims Act was passed is demonstrated by that Committee’s report, submitted less than two weeks prior to passage of the Act, on subrogation claims presented by insurance companies in connection with the crash of an army airplane into the Empire State Building. The War Department had recommended to Congress that Empire State, Inc., and other private claimants be paid their uninsured losses (which was done) but refused to recommend payment of insured losses. H. R. 6683 was introduced “to appropriate the sum of $143,279.94 to 22 fire-insurance companies in full satisfaction of their subrogation claims against the United States . . . .” The Committee made specific reference to Attorney General Mitchell’s opinion, noted that since that time the War Department had paid subrogation claims of less than $1,000 under the Military Claims Act, 31 U. S. C. § 223, and disapproved that department’s refusal to certify claims of over $1,000. To the assertion that Congress had consistently refused to recognize subrogation claims as barred by R. S. 3477, the Committee report contains the flat denial: “That statement is not in accordance with the fact” and cites a number of subrogation claims favorably acted upon by Congress. The bill was favorably reported, H. R. Rep. No. 2655, 79th Cong., 2d Sess., but nine days later the Tort Claims Act was passed, § 131 of which provided that no private bill should authorize payment of money for claims for which suit might be brought under that Act, extending retroactively to claims accruing after January 1, 1945. Since the claims involved had accrued subsequent to that date, the insurance company subrogees brought suit in a federal district court, where the Government once more interposed a defense based on R. S. 3477, despite the Committee’s specific approval of payment directly to the subrogees. The defense was rejected. Niagara Fire Ins. Co. v. United States, 76 F. Supp. 850. Formerly 28 U. S. C. § 932. See note 8, supra. They are clearly not "indispensable” parties under the familiar test of Shields v. Barrow, 17 How. 130, 139 (1855), that such parties have “an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” See Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 488 (1890); Hubbard v. Manhattan Trust Co., 87 F. 51; Rogers v. Penobscot Mining Co., 154 F. 606; 3 Moore, Federal Practice (2d ed.) p. 2178. The counterclaim statute, 28 U. S. C. § 1346 (c), confers jurisdiction on district courts over any “counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action.” The offset statute, 31 U. S. C. §§ 71, 227, directs the deduction from judgments and allowed claims against the United States of debts as to which “the plaintiff therein shall be indebted to the United States.” (Italics added.) We need not and do not consider what rights of counterclaim and set-off may lie in the United States in suits brought by insurer-subrogees. Cf. United States v. Munsey Trust Co., 332 U. S. 234 (1947); Defense Supplies Corp. v. United States Lines Co., 148 F. 2d 311. Question: What is the state of the court in which the case originated? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Henry TAYLOR, Appellant, v. UNITED STATES of America, Appellee. No. 18301. United States Court of Appeals Ninth Circuit. June 21, 1963. Gill, Doi, Shim, Maito & McClung, and David C. McClung, Honolulu, Hawaii, for appellant. Herman T. F. Lum, U. S. Atty., and T. S. Goo, Asst. U. S. Atty., Honolulu, Hawaii, for appellee. Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges. HAMLEY, Circuit Judge. Henry Taylor was tried under a twenty-three-count amended information charging violations of section 501(c) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 501(e). The labor organization in question is the American Guild of Variety Artists (Guild). During the indicated period Taylor was manager of the Hawaiian branch of that organization. The jury returned a verdict of guilty on each of the counts except the third. A judgment of conviction and sentences were thereupon entered, from which Taylor appeals. Section 501(c) makes it a crime for an officer or employee of a labor organization to embezzle, steal or unlawfully and wilfully abstract or convert to his own use, or the use of another, any of the moneys, funds, securities, property, or other assets of such organization. The section provides that one who violates that statute shall be fined not more than $10,000 or imprisoned for not more than five years, or both. Taylor contends that because the heavy penalty provision of this statute is applicable to all violations thereof without regard to the amount embezzled, stolen, abstracted or converted, the statute violates the Due Process Clause of the Fifth Amendment. Appellant calls attention to other criminal statutes, dealing with embezzlement, stealing and purloining of money or other property, in which a lesser penalty is prescribed where the money or the value of the property is less than $100. Appellant argues that this difference in penalty provisions works an impermissible discrimination against persons employed by labor organizations when compared with the treatment handed out to embezzlers and the like employed by other than a labor organization falling within the purview of the statute. In support of this proposition appellant relies primarily on Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, in which Oklahoma’s Habitual Criminal Sterilization Act was held to offend the equal protection clause of the Fourteenth Amendment. The Fourteenth Amendment applies to state, not federal action. The Fifth Amendment, here invoked, applies to federal action, and while it contains a due process clause, it does not contain an equal protection clause. Detroit Bank v. United States, 317 U.S. 329, 337, 63 S.Ct. 297, 87 L.Ed. 304. However, although due process and equal protection are not always interchangeable phrases, discriminatory federal action may be so unjustifiable as to be violative of Fifth Amendment due process. The test, insofar as federal action is concerned, is whether the alleged discriminatory feature is reasonably related to any proper governmental objective. See Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884; Boylan v. United States, 9 Cir., 310 F.2d 493, 500. But having posed the precise constitutional question which appellant seeks to present, we must hold, on our own motion, that it is not a question which may be determined on this appeal. Constitutional questions are not entertained in federal court in advance of the strictest necessity. Under this principle a constitutional attack upon a statute will not be entertained at the instance of one who fails to show that he is injured by the statute’s operation. Rescue Army v. Municipal Court, 331 U.S. 549, 569, 67 S.Ct. 1409, 91 L.Ed. 1666. Appellant has failed to show that he is injured by the failure of section 501(c) to contain a provision prescribing a lesser penalty where the amount involved is not more than one hundred dollars. On the first count Taylor was sentenced to prison for a term of three years, no fine being imposed. Since the amount of money involved in that count was $138, a provision in the statute under which he was convicted (section 501(c)), setting a lesser penalty where not more than one hundred dollars is involved, would have been of no benefit to him on that count. This is also true of his like sentences under counts II, XI and XII, where the amounts involved were, respectively, $186, $279 and $279. The sentences under counts II, XI and XII run concurrently with each other and with the sentence under count I. The amount involved in each of the remaining counts under which convictions were obtained was less than one hundred dollars. As to each the same three-year sentence, without fine, was imposed, these sentences to run concurrently with each other and with the sentence imposed under count I. Assuming, therefore, that a lesser sentence should have been available to appellant on each^of the latter counts in order to comport with Fifth Amendment due process, he has nevertheless not been prejudiced. He must in any event serve the concurrent three-year sentences imposed under counts I, II, XI and XII. The like sentences on the remaining counts, being the same and likewise concurrent, have added nothing to appellant’s penalty. This, of course, assumes that some one of the convictions obtained under counts I, II, XI and XII is otherwise valid. For the reasons stated later in this opinion we hold that the convictions under at least counts I, II and XI are otherwise valid. “A statute challenged as repugnant to the due process clause of the Fifth Amendment must be tested ‘on its face’; because it is ‘the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression.’ ” Appellant argues, however, that where a statute is challenged as denying due process of law, it must be tested on its face without regard to the circumstances of a particular case. In so arguing, appellant relies on United States v. DeCadena, D.C.N.D.Cal., 105 F.Supp. 202, 204. This is ordinarily the case where, as in DeCadena, the constitutional question is whether the statute is void for vagueness, for then the problem is whether the statute itself gives notice. See Jordan v. DeGeorge, 341 U.S. 223, 230, 71 S.Ct. 703, 95 L.Ed. 886. But no such consideration is involved where the constitutional challenge is predicated upon an asserted discriminatory feature in the penalty part of the statute unless such feature is of a kind which could prejudice all who are sentenced under the act. As indicated above, that is not the case here. Many statutes may be constitutional as applied under one set of circumstances and unconstitutional as applied under another; the question in such a case is whether the statute is constitutional as applied. If a statute carries a discriminatory penalty provision but, under the circumstances of a particular case, it is clearly demonstrable that a defendant has not been prejudiced, the statute is not unconstitutional as applied to him. This being the position in which appellant finds himself, it is of no concern to him whether section 501(c) carries a discriminatory penalty. Therefore we do not decide the constitutional question. Appellant next argues that the verdict is not supported by substantial evidence. The twenty-two counts under which Taylor was convicted cumulatively charge that on various dates between June 20, 1960 and June 26, 1961, while he was an employee of the Guild, a labor organization, he embezzled, stole or unlawfully and wilfully abstracted or converted to his own use moneys of the Guild in amounts ranging from $25 to $279. The proof consisted of oral testimony, exhibits and stipulations as to certain facts. Under this proof the jury could have found that Taylor was appointed Hawaiian branch manager of the Guild on May 20, 1960; that upon his appointment he was told that all moneys collected by him for the Guild on any given day should be deposited by the close of the next business day in the Guild account at the Bishop National Bank in Honolulu; that he was specifically instructed not to cash any such checks; that according to further instructions, he was to maintain certain books and records for the Guild in connection with the receipt of initiation fees and dues from present or prospective members. There was also sufficient evidence to warrant a jury finding that between June 20, 1960 and June 26, 1961, Taylor received checks made out to the Guild in varying amounts ranging from $25 to $279, each identified in a separate count as amplified by a bill of particulars; that these checks were made and delivered in payment of initiation fees and dues by present and prospective members of the Guild; that Taylor, contrary to his instructions, failed to deposit the checks to the account of the Guild but endorsed them and received cash therefor; that he withheld the amounts of cash specified in each count on which he was convicted; and that Taylor did not record, in any of the books and records of the Guild, the receipts so withheld. With specific reference to counts I, II and XI, each involving more than one hundred dollars, the evidence was sufficient to establish the facts stated above. Appellant argues further, however, that these facts are not sufficient to convict. It is his position that there must also be as to each count, but was not, direct evidence showing that: (1) Taylor’s dealings with the money constituted an abstraction or conversion or embezzlement of the money to his own use or the use of another; and (2) the abstraction, conversion or embezzlement was done unlawfully and wilfully with intent to deprive the Guild of the money. Direct evidence in proof of these elements is always required, appellant argues, but especially so in view of Taylor’s testimony demonstrating his innocent intent. It was Taylor’s testimony that he cashed the checks instead of depositing them so that it would be easier to make an adjustment in the event the check “bounced,” or in the event the fee was paid for the initiation of a foreign entertainer, and the applicant did not come to the Islands. He stated that he did not keep Guild records on these transactions because they had to be held in suspense pending information as to the real name of the performer, or to ascertain if the remainder of the fee would be paid. Taylor testified that he made informal memorandum slips of each transaction which were kept in the Guild office, but that they were not returned to him when he was discharged. Taylor testified that he took all the cash proceeds to the Guild office awaiting information that would make it possible to allocate the funds to the various accounts. When he went on vacation in July, 1961, Taylor testified, he took the money out of the Guild office and left it at his home. It was his testimony that after his discharge he several times offered to make a full accounting but that this was refused. He turned over most of the moneys so held. He still had about one thousand dollars at the time of trial which, according to Taylor, he offered to turn over to the Guild, but the offer was refused. In arguing this point appellant cites State v. McGuire, 107 Mont. 341, 88 P.2d 35, where it was held that proof of a shortage is not sufficient to convict where the defendant gave an explanation which was consistent with his innocence, namely that he was robbed. This explanation was partially corroborated by witnesses for the defendant and state and was not contradicted by any witness. The essence of the decision was that “uncontradicted, credible evidence cannot be disregarded by court or jury.” That is not the rule in this circuit. A jury is not bound to accept the testimony of any witness in a criminal trial. It was of course necessary for the Government to prove beyond a reasonable doubt that Taylor intended to, and did, embezzle, steal or unlawfully and wilfully abstract or convert to his own use the moneys of the Guild which he failed to deposit to its account. See Morissette v. United States, 342 U.S. 246, 260, 72 S.Ct. 240, 96 L.Ed. 288. But the general rule is that unlawful and wilful purpose to retain the money of another for one’s own use, need not be proved by direct testimony. As pointed out in McKenna v. United States, 8 Cir., 232 F.2d 431, 437, such a state of mind is not generally susceptible of direct proof but may be inferred from the facts and circumstances attending the act. But appellant argues that no such inference may be drawn in this case because it was not proved that a demand was made for an accounting and that the appellant failed or refused to account. He asserts that, quite to the contrary, appellant requested that he be allowed to account and that this request was denied. In support of this argument appellant calls attention to an instruction given here which became the law of the case, and to instructions which were requested and refused in State v. Stringer, 162 La. 925, 111 So. 330. In Stringer the defendant collected twenty-five dollars belonging to his employer on July 4, 1926 and took the money with him that evening when he departed for another city fifty-two miles away. He returned to his home city fifteen days later and was immediately arrested and charged with embezzlement His defense was that on the day he received the money he tried to find his employer to pay over the money but could not find him; so he took the money with him on the trip. Under the circumstances of that case the court held that the defendant was entitled to a requested instruction to the effect that a mere failure to account for money received for an employer, without proof of a demand for an accounting, would not sustain a conviction “unless it was proven that the defendant actually misappropriated the money or converted it to his own use.” Such an instruction, in essence, was given in this case, as quoted in note 13. But appellant argues that there was no other evidence of misappropriation and conversion; therefore a demand for an accounting, and a refusal, was necessary to support the verdict. Appellant’s mistake is in assuming that because there was no other direct evidence of unlawful intent to misappropriate the retained funds, there was no other evidence thereof. As already noted, direct evidence is not required. Here the jury were entitled to believe that appellant was under explicit instructions to deposit all checks given in payment of initiation fees and dues as received, to the Guild’s account, and to cash no such cheeks; that he did not deposit the checks here in question, but cashed them and accepted the proceeds; that these proceeds were in his possession at his home at the time the shortages were discovered; and that he had submitted false records to the Guild headquarters. Whether it is necessary for the prosecution to prove a demand for an accounting, and a refusal to account, in order to make out a case of embezzlement depends upon the facts of the case. Where it appears that the time for payment of the money is definitely fixed, and the payment was not made within that time, no such demand and refusal need be shown. Here the jury could find that the time for payment was definitely fixed — the checks were to be deposited upon receipt to the Guild’s account; and appellant did not make such payments within that time or at all prior to discovery of the shortages. As before indicated, the jury were not required to believe Taylor’s explanation for his failure to deposit the checks or the proceeds thereof. Appellant’s final assignments of error bring into question the trial court’s refusal to give certain requested instructions. One of these emphasized the principle that in order to constitute a violation of section 501(c), it must be shown that an abstraction, conversion or appropriation was done “willfully and unlawfully and with a fraudulent intent.” Another would have advised the jury that, “there is no presumption of abstraction, conversion or misappropriation raised from a mere withholding or mere failure to pay, return, deposit or account for any of the moneys collected by the Defendant.” The jury were instructed that “the term ‘embezzlement’ as used in the statute means the unlawful and willful taking or conversion by a person to his own use of funds or monies which came into his custody or possession lawfully by virtue of his office or employment.” Developing this definition, the court told the jury that an essential element to the commission of the offense charged in each count “is the fraudulent, unlawful and willful taking or conversion of money, fund or property belonging to another.” The court then defined the terms “fraudulent,” “unlawful” and “willful,” and appellant does not question the correctness of those definitions. Further emphasizing these essential elements of the offense, the court told the jury that if they were satisfied beyond a reasonable doubt that, with respect to any particular count, appellant wilfully or fraudulently embezzled, converted or appropriated the money “with a bad purpose,” then they could find him guilty on that count, assuming that the other essential elements of the crime were found to be present. On the other hand, the court advised, they should not convict if they found that appellant’s action or lack of action was due to “inadvertence, carelessness or negligence, or even gross negligence on his part, * * * ” There were also other instructions, explicit and in great detail, further emphasizing the necessity of finding that the elements of fraud, unlawfulness and wilfulness must be present. Our examination of all of the instructions convinces us that the jury was amply charged with regard to the matters dealt with in the proposed instructions referred to above. The refusal to give the requested instructions was not reversible error. A third requested instruction, refused by the court, was to the effect that the jury should not convict “upon mere suspicion,” and that what the law requires “is not suspicion, not possibilities, nor mere probabilities, but proof which excludes all reasonable doubt of his guilt.” The jury was fully instructed concerning the necessity of finding the facts against appellant beyond a reasonable doubt in order to convict. The trial court did not err in refusing to give this further instruction on the point. The judgment is affirmed. . The amended information originally contained twenty-four counts, but the twenty-fourth count was stricken before the case went to the jury. . Appellant first raised this question prior to trial on a motion to dismiss the information. The motion was denied. . The statutes upon which appellant relies are 18 U.S.C. §§ 641, 646, 648-650, 652-657, 659, 1691 and 1711. Title 18 U.S.C. § 641, dealing with similar offenses involving money and property of the United States prescribes, as the penalty for violations, a fine of not more than $10,000 or imprisonment for not more than ten years, or both; “but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both.” A like reduction in penalty, where the money or value of property is not more than $100, is provided for in section 646 (embezzlement by officers of a United States court of money belonging in the registry of the court); section 648 (em-bezzlements, etc. of public moneys, by statutory custodians); section 649 (em-bezzlements of public funds by persons required to deposit them); section 650 (embezzlement of deposited funds by Treasurer of the United States or any public depository); sections 652 and 653 (embezzlement of public moneys by federal disbursing officers); section 654 (embezzlement or conversion by employees of the United States of money or property of another coming into their official possession); sections 655 and 656 (theft by bank examiners, officers, employees, receivers or agents, from banks which are members of the Federal Reserve System or which are insured by the Federal Deposit Insurance Corporation); section 657 (embezzlement, etc. bv officers, agents, and employees of Reconstruction Finance Corporation and other named federal corporations); section 659 (embezzlement, theft, etc. from common carrier facilities); section 1691 (embezzlement, etc. of postal savings funds); and section 1711 (misappropriation of postal funds by postal service employees). Not cited by appellant is 18 U.S.C. § 660, providing that an officer or employee of a common carrier who embezzles, steals, abstracts or wilfully misapplies or permits to be misapplied any moneys, funds, credits, securities, properties or assets of such carrier, or wil-fully or knowingly converts the same to his own use or to the use of another, shall be fined not more than $5,000 or imprisoned not more than ten years, or both. No lesser penalty is provided in section 660 where the -property stolen, embezzled or converted is of a value of not more than $100 or any other specified maximum amount. . The Equal Protection Clause of the Fourteenth Amendment was also involved in two other cases relied upon by appellant, namely: Davis v. Ogden City, 117 Utah 315, 215 P.2d 616, 223 P.2d 412, 16 A.L.R.2d 1208; and Ratcliff v. State, 106 Tex.C.Cr. 37, 289 S.W. 1072. The fourth case relied upon by appellant, United States v. DeCadena, D.C.N.D. Cal., 105 F.Supp. 202, involved another aspect of the Due Process Clause of the Fifth Amendment, namely, whether the criminal statute there in question ■(now repealed) was so vague that it failed to give due notice that an act had been made criminal. . Rescue Army v. Municipal Court, 331 U.S. 549, 568, 67 S.Ct. 1409, 91 L.Ed. 1666; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J., concurring) ; Carson v. United States, 9 Cir., 310 F.2d 558, 561. . In DeCadena, the court stated: . Even in void for vagueness cases, however, the courts have not always limited thomselves to an examination of the face of the statute, but have sometimes taken into consideration other circumstances. See Dennis v. United States, 341 U.S. 494, 515-516, 71 S.Ct. 857, 95 L.Ed. 1137. . Compare Dennis v. United States, 341 U.S. 494, 514, 71 S.Ct. 857, 95 L.Ed. 1137 with United States v. Petrillo, 332 U.S. 1, 6, 67 S.Ct. 1538, 91 L.Ed. 1877. . The payment of $75 on May 10, 1961 was in the form of cash instead of a check. . The jury could also have found that in some eases Taylor made differing records, giving the members or applicants a receipt for one amount, while accounting to the Guild for a lesser amount which served to conceal the amount withheld. The jury could have inferred from this an intent to steal or embezzle the funds not deposited to the credit of the Guild. . See Wilson v. United States, 9 Cir., 250 F.2d 312, 318; Lutfy v. United States, 9 Cir., 230 F.2d 643, 646. The same rule applies in this circuit in civil actions and suits in admiralty. See Kamos v. Matson Navigation Company, 9 Cir., 316 F.2d 128, 132, and cases there cited. . It was so charged in each count of the amended information. . The instruction is question reads: “Now, if there is proof beyond a reasonable doubt of actual taking, misappropriation or embezzlement by the Defendant, then no demand for an accounting is necessary. On tbe other band, if such proof is lacking, then a demand for an accounting is necessary, even though Defendant might be in possession of money of the Variety Artists, — and since in this case there is no evidence of such a demand — why, you could not find the Defendant guilty under that theory. In other words, the government’s theory here is that there was at the time an unlawful taking, misappropriation and embezzlement by the Defendant when he acted in the manner in which he acted, as the government claims, under each Count. * * * ” . Dobbins v. United States, 81 U.S.App.D.C. 218, 157 F.2d 257, 259; People v. Hall, D.C.A., 55 Cal.App.2d 343, 130 P.2d 733, 736. . What has just been said also serves to distinguish another decision relied upon by appellant on this branch of the case, namely People v. Grimes, D.C.A., 91 Cal.App.2d 629, 205 P.2d 416. In Grimes the action of a trial court in setting aside, after a preliminary hearing, an information charging grand theft, was upheld. The evidence produced at this hearing showed only that the defendant was the executor of an estate; that as such executor he received three hundred dollars which belonged to the estate; that this sum was not deposited by the defendant in a certain bank account; and that one of the legatees inquired of the defendant as to when the estate would bo distributed. The court said: “ * * * An inference that the money was stolen or embezzled cannot be drawn from the fact that respondent did not deposit the money in a particular bank since the Probate Code does not impose upon an executor the duty of depositing funds which come into his possession during the course of administration * * In the case before' us, appellant did have a duty to deposit Guild checks in that organization’s bank account — a duty which he failed to perform. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
sc_caseorigin	102	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. UNITED STATES et al. v. ALLEGHENY-LUDLUM STEEL CORP. et al. No. 71-227. Argued March 27, 1972 Decided June 7, 1972 Rehnquist, J., delivered the opinion for a unanimous Court. Samuel Huntington argued the cause for the United States et al. With him on the briefs were Solicitor General Griswold, Assistant Attorney General McLaren, Acting Assistant Attorney General Comegys, Frits R. Kahn, Betty Jo Christian, and James F. Tao. Max 0. Truitt, Jr., and William M. Moloney argued the cause for appellees. With Mr. Truitt on the brief for appellees Allegheny-Ludlum Steel Corp. et al. was Sally Katzen. With Mr. Moloney on the brief for ap-pellee Association of American Railroads were James I. Collier, Jr., and Gordon E. Neuenschwander. John F. Donelan filed a brief for appellee National Industrial Traffic League. Mr. Justice Rehnquist delivered the opinion of the Court. In 1969 the Interstate Commerce Commission promulgated two “car service rules” that would have the general effect of requiring that freight cars, after being unloaded, be returned in the direction of the lines of the road owning the cars. Several railroads and shippers instituted two separate suits under 28 U. S. C. §§ 2321-2325 to enjoin enforcement of these rules. In Florida East Coast R. Co. v. United States, 327 F. Supp. 1076 (MD Fla. 1971), the action of the Commission was sustained by a three-judge court, but in the case now before us a similar court for the Western District of Pennsylvania held the Commission’s order invalid. 325 F. Supp. 352 (WD Pa. 1971). We noted probable jurisdiction, 404 U. S. 937, and for the reasons hereinafter stated we conclude that the Commission’s action here challenged was within the scope of the authority conferred upon it by Congress and conformed to procedural requirements. The country’s railroads long ago abandoned the custom of shifting freight between the cars of connecting roads, and adopted the practice of shipping the same loaded car over connecting lines to its ultimate destination. The freight cars of the Nation thus became in essence a single common pool, used by all roads. This practice necessarily required some arrangements for eventual return of a freight car to the lines of the road which owned it, and in 1902 the railroads through their trade association dealt with this and related problems in a code of car-service rules with which the roads agreed among themselves to comply. The effect of the Commission’s order now under review is to promulgate two of these rules as the Commission’s own, with the result that sanctions attach to their violation by the railroads. Because of critical freight-car shortages experienced during World War I, Congress enacted the Esch Car Service Act of 1917, which empowered the Commission to establish reasonable rules and practices with respect to car service by railroads. 40 Stat. 101, 49 U. S. C. §1(14) (a). The pertinent language of that Act provides: “The Commission may... establish reasonable rules, regulations, and practices with respect to car service by common carriers by railroad subject to this chapter... No party to this proceeding has questioned that the rules promulgated by the Commission are “rules, regulations, and practices with respect to car service,” and therefore the issue before us is whether these rules are “reasonable” as that term is used in the Esch Act. The court below concluded, and the appellees here contend, that for a number of reasons the rules in question do not meet the statutory requirement of reasonableness. Appellees also contend that the findings of the Corn-mission are insufficient under the Administrative Procedure Act, 5 U. S. C. § 551 et seg. The record of proceedings before the Commission establishes that the Commission has been increasingly concerned with recurring shortages of freight cars available to serve the Nation’s shippers. It found that shortages of varying duration and severity occur both as an annual phenomenon at peak loading periods and also during times of national emergency. The result of these shortages has been that roads were unable to promptly supply freight cars to shippers who had need of them. Underlying these chronic shortages of available freight cars, the Commission found, was an inadequate supply of freight cars owned by the Nation’s railroads. The Commission concluded that one of the principal factors causing this inadequate supply of freight cars was the operation of the national car-pool system. In practice this system resulted in freight cars being on lines other than those of the owning road for long periods of time, since the rules providing for the return of unloaded freight cars in the direction of the lines of the owning road were observed more often than not in the breach. Since the owning road was deprived of the use of its own freight cars for extended periods of time, the Commission found, there was very little incentive for it to acquire new freight cars. In addition, since a road which owned a supply of freight cars inadequate to serve its own on-line shippers could generally, by hook or by crook, arrange to utilize cars owned by other roads, the national car-pool system significantly reduced the normal incentive for a railroad to acquire sufficient equipment to serve its customers. The rules promulgated by the Commission are intended to make those railroads whose undersupply of freight cars contributes to the national shortage more directly feel the pinch resulting from the shortage that they have helped to cause. By thus requiring each road to face up to any inadequacies in its ownership of freight cars, the rules are intended in the long run to correct the nationwide short supply of freight cars that the Commission has found to exist. Central to the justification for the Commission's promulgation of these rules is its finding that there was a nationwide shortage of freight car ownership. The court below assumed the correctness of that finding, and we conclude that it was supported by substantial evidence. Shortly after the Second World War, the Commission conducted an investigation into the adequacy of freight car supply and utilization by the Nation's railroads. The Commission in that proceeding concluded that there was “an inadequacy in freight car ownership by rail carriers as a group.” Recognizing that this inadequacy was caused at least in part by the inability of the railroads to acquire new equipment, first during an era of wartime demand and then during an era of post-war boom, the Commission at that time imposed no obligation on the railroads except to require them to file with it their rules and regulations with respect to car service. In 1963 the Commission began this investigation into the adequacy of car ownership, distribution, and utilization. At the conclusion of the investigatory phase of the proceeding in 1964, the Commission determined that there was a shortage of freight cars in general service. 323 I. C. C. 48 (1964). Formal notification of proposed rulemaking was then issued, and a questionnaire was submitted to the various railroads for the purpose of compiling data on car ownership and use. After these data were gathered, railroads, shippers, and other interested parties were permitted to file verified statements providing further factual material and to adduce legal arguments. The Commission, through its Bureau of Operations, presented to the Hearing Examiner tabular collations of the freight car ownership and use data, and suggested a formula by which a railroad might compute the sufficiency of its freight car ownership. The Bureau also proposed that the entire Code of Car Service Rules adopted by the Association of American Railroads be promulgated by the Commission for mandatory observance. Many railroads and shippers opposed mandatory enforcement of the rules. Some roads and shippers appeared in favor of at least some mandatory enforcement of the rules, arguing that unless some compulsion were used in enforcing them, cars purchased by a railroad for use by its shippers would continue to be detained for inordinately long periods of time by other roads. After 50 days of hearings, the Trial Examiner issued his report, recommending against mandatory enforcement of the car-service rules. Although the Commission, prior to referring the matter to him, had previously made a definitive finding that a shortage of freight cars existed, the Examiner’s report stated that there was no competent evidence in the record developed before him upon which such a determination could be made. The Examiner assigned several reasons for recommending against mandatory enforcement of the rules. The Commission issued a comprehensive opinion disagreeing with the trial examiner in many respects, and ordering that two of the car-service rules be promulgated as rules of the Commission with sanctions attaching to noncompliance. Finding that “[t]he continuing relocation of cars on owner’s lines is of major importance to the maintenance of an adequate car supply,” the Commission concluded that the inconveniences feared by the shippers were outweighed by the long-term benefit that would accrue from the mandatory enforcement of the two car-service rules. After its first order adopting the two rules was issued, the Commission considered claims that there was need for some procedure for exceptions to the mandatory enforcement of the rules. A supplemental order that established another rule that permitted the railroads to seek exception from the Commission’s Bureau of Operations, in order to alleviate inequities and hardships. The court below held that the rules were not “reasonable,” as that term is used in the Esch Act, for three reasons. First, although there was a general finding of a nationwide freight car shortage, the court said that a specific shortage on owner lines should have been found in order to justify the promulgation of these rules. Second, it said there should have been a finding as to the financial effects upon the railroads and shippers who would be affected by the rules. Finally, it supported its conclusion that the rules were not “reasonable” by the fact that even though violation of the rules could be enforced by monetary penalties, the Commission nonetheless conceded that obtaining complete compliance with them would be impossible. The standard of judicial review for actions of the Interstate Commerce Commission in general, Western Chemical Co. v. United States, 271 U. S. 268 (1926), and for actions taken by the Commission under the authority of the Esch Act in particular, Assigned Car Cases, 274 U. S. 564 (1927), is well established by prior decisions of this Court. We do not weigh the evidence introduced before the Commission; we do not inquire into the wisdom of the regulations that the Commission promulgates, and we inquire into the soundness of the reasoning by which the Commission reaches its conclusions only to ascertain that the latter are rationally supported. In judicially reviewing these particular rules promulgated by the Commission, we must be alert to the differing standard governing review of the Commission’s exercise of its rulemaking authority, on the one hand, and that governing its adjudicatory function, on the other: “In the cases cited, the Commission was determining the relative rights of the several carriers in a joint rate. It was making a partition; and it performed a function quasi-judicial in its nature. In the case at bar, the function exercised by the Commission is wholly legislative. Its authority to legislate is limited to establishing a reasonable rule. But in establishing a rule of general application, it is not a condition of its validity that there be adduced evidence of its appropriateness in respect to every railroad to which it will be applicable. In this connection, the Commission, like other legislators, may reason from the particular to the general.” Assigned Car Cases, supra, at 583. The finding of the Commission as to a nationwide shortage of freight cars was based primarily on data submitted by the railroads themselves covering the years 1955 through 1964. Over this 10-year period total freight car ownership of Class I railroads dropped 12.4%, and aggregate carrying capacity of those railroads dropped 5%. Over the same period revenue tons orig-mated dropped 2.9%. The decline in ownership of plain box cars, as opposed to more sophisticated types of cars, was even more dramatic; ownership of cars over the 10-year period in question dropped 22.1%, while aggregate carrying capacity of such cars dropped 18.9%. Testimony of witnesses for the National Industrial Traffic League, the Western Wood Products Association, the American Plywood Association, and the Vulcan Materials Association also supported the finding of a car shortage. These statistics, taken together with the Commission’s post-war determination of a car shortage, portray a gradually worsening ratio of carrying capacity to revenue tons originated. The Commission further found that freight car shortages, in the sense that a particular road was unable to promptly supply freight cars to particular shippers who needed them, have occurred chronically, both during peak loading seasons each year and during times of national emergency. It is quite true, as appellees suggest, that inability of the roads to supply cars to shippers at particular times is not conclusive evidence that there is a national shortage of freight car ownership. Conceivably, freight car ownership could be adequate, yet poor utilization of the supply could result in shortages. Nonetheless, the Commission may fairly rely on these chronic shortages in availability of freight cars as one factor upon which to base its conclusion that there was an overall shortage of ownership of freight cars. The Commission also found that a surprisingly low percentage of freight cars was actually on the tracks of the roads owning the cars at any given time, and that this percentage had been decreasing during the period in question. In March 1966, less than 30% of the railroads’ plain box cars were on the line of their owner, and during the preceding year that percentage remained mostly in the low thirties. The Commission summarized the factual situation it found in these words: “From the evidence adduced and the data collected, it is obvious thdt an adequate freight car supply is as much a problem today as it was during the period considered in our last proceeding in 1947. Car service which involves a shortage of approximately one out of every ten cars ordered or even one out of every fifteen cars ordered demands that every available means be marshalled to eliminate such deficiencies.” 335 I. C. C., at 285. One of the means marshaled by the Commission to eliminate such deficiencies was the promulgation of the two rules under attack here. The thrust of these rules is to require that freight cars after unloading be dispatched in the direction of the lines of the owning road. Thus, the Commission concluded after investigation that the railroads were frequently unable to supply shippers with freight cars. It reasoned from this fact, and from statistics showing a significantly more rapid decline in aggregate carrying capacity than in revenue tons originated, that an underlying and important cause of the unavailability of box cars to shippers was that the Nation’s railroads simply did not jointly own a sufficient number of freight cars to adequately serve shippers of goods over their lines. Because of the existence of the national pool of freight cars, whereby roads may service on-line shippers with foreign cars, it was difficult, if not impossible, to relate inadequate ownership statistically to any particular road or roads. The Commission therefore chose to make mandatory two of the car-service rules that would have the effect of aligning more closely than at present the ownership of freight cars on the part of the road with the availability of those freight cars to the owning road for use of its on-line shippers. The result of these rules, over the long term, the Commission reasoned, would be to bring home to those roads which themselves had an inadequate supply of cars to serve their on-line shippers that fact, and also without doubt to supply incentive to such roads to augment their supply of freight cars in order to adequately serve their on-line shippers. The national supply of freight cars would thereby be augmented, and the railroads as a result would be better able to supply the needs of shippers. Appellees’ fundamental substantive contention is that the short-term consequences of the enforcement of these rules will so seriously disrupt established industry practices as to outweigh any possible long-term benefits in service that might accrue from them, and that therefore the rules are not “reasonable” as that term is used in the Esch Act. While, of course, conceding that the railroads themselves originally promulgated the rules for voluntary compliance, appellees argue that because the rules have been observed largely in the breach, usages and practices have grown up that permit far more efficient utilization of the existing fleet of freight cars than would be permitted if the two rules in question were enforced by the Commission. Appellees state that in reliance on the existence of a national pool of freight cars, and on the consequent availability to shippers of cars not owned by the line originating the shipment, manufacturing plants have been located and enlarged. They claim that enforcement of the rules now would seriously hamper the movement of freight traffic from these and other shipping points. It may be conceded that the immediate effect of the Commission's order will be to disrupt some established practices with respect to the handling and routing of freight cars, and on occasion to cause serious inconvenience to shippers and railroads alike. If the Commission were thrusting these regulations upon an admittedly smoothly functioning transportation industry, well supplied with necessary rolling stock and adequately serving all shippers, the rationality of its action might well be open to question. But such is not the case. The Commission’s finding that there are recurring periods of significant length when there is not an adequate freight car supply to service shippers is supported by substantial evidence. While the flexible system of routing freight cars presently in existence may well have short-term advantages both for some shippers and some roads, the Commission could quite reasonably conclude that it has long-term drawbacks as well. The otherwise adverse effect on a road’s ability to serve shippers that would result from its owning too few cars is cushioned; the beneficial effect on a road’s ability to serve shippers that would result from its owning a sufficient supply of cars is dissipated. The Commission undoubtedly felt that rules designed only to most efficiently utilize the existing inadequate fleet of freight cars would have little or no effect on the nationwide shortage of such cars. Indeed, the appellees stress the concession by the Commission that these rules “are not designed to improve the utilization of freight cars, except insofar as return loading is compatible with the primary objective of increasing availability of cars to the owner.” 335 I. C. C., at 294. But only if we were to hold that Congress, in enacting the Esch Car Service Act, intended that the only-criterion that the Commission might consider in establishing “reasonable rules, regulations, and practices with respect to car service” was the optimum utilization of an existing fleet of freight cars, however numerically inadequate that fleet might be, could this argument be sustained. Neither the language that Congress used nor the legislative history of the Act supports such a narrow reading of its grant of authority to the Commission. On the record before it, the Commission was justified in deciding that the railroads and the shippers were afflicted with an economic illness that might have to get worse before it got better. Existing practices respecting car service tended to destroy any incentive on the part of railroads to acquire new cars, and the resulting failure to acquire new equipment contributed to an overall nationwide shortage of freight cars that prevented the railroad industry from adequately serving shippers. Car-service rules that would tend to restore incentive to the various roads to augment their supply of freight cars, even at the temporary expense of optimum utilization of the existing fleet of freight cars, conform under these circumstances to the statutory requirement of reasonableness. Appellees support their claim that the Commission’s promulgation of these rules is not “reasonable” under the Esch Act on two grounds not directly related to the rules’ claimed adverse effect on the ability of the roads to serve shippers. They attack the absence of a Commission finding as to the financial ability of roads inadequately supplied with freight cars to purchase new ones, and they cite the conceded impossibility of obtaining complete compliance with the rules as additional evidence of their unreasonableness. The Commission’s order does not require any road to purchase any freight cars. It abridges to some extent the existing practice among railroads of treating the freight cars that they own as a pool, and for that reason may ultimately cause roads that do not have an adequate supply of freight cars to serve on-line shippers to be less able to serve such shippers than they are now. If, as a result of this fact, such roads are placed under economic and competitive pressure to acquire additional freight cars, there is certainly no principle of law we know of that would require the Commission to permit them to avoid this economic pressure by continuing to borrow freight cars acquired and owned by other lines. The Commission, acceding to the arguments of shippers and railroads on rehearing, agreed that mandatory total compliance with the rules promulgated would be impossible in view of the tremendous number of units involved, and, accordingly a procedure by which exceptions might be applied for was established. How the provision for exceptions will be administered in practice is a matter about which we could only speculate at present. It is well established that an agency’s authority to proceed in a complex area such as car-service regulation by means of rules of general application entails a concomitant authority to provide exemption procedures in order to allow for special circumstances. Permian Basin Area Rate Cases, 390 U. S. 747, 784-786 (1968). What bearing any of these factors might have on an action under the provisions of 49 U. S. C. § 1 (17) for the collection of penalties for a violation of the rules in question is a question best decided in such a proceeding. The fact that violation of a rule promulgated under the E'sch Car Service Act may be the basis for a proceeding to collect a penalty does not either expand or contract the statutory definition of “reasonable” found in that Act. What we have said thus far is enough to indicate our view that there is sufficient relationship between the Commission’s conclusions and the factual bases in the record upon which it relied to substantively support this exercise of its authority under the Esch Act. Appellees press on us an additional claim that the Commission failed to comply with the provisions of the Administrative Procedure Act, 5 U. S. C. § 551 et seq., citing Burlington Truck Lines v. United States, 371 U. S. 156 (1962), and Secretary of Agriculture v. United States, 347 U. S. 645 (1954). Burlington Truck Lines is clearly inapposite, however, since in that case the Court was dealing with adjudication, not rulemaking. In criticizing the Commission’s action there, the Court said that “the Administrative Procedure Act will not permit us to accept such adjudicatory practice,” 371 U. S., at 167. In Secretary of Agriculture v. United States, supra, the Court reviewed the Commission’s action, not under the Administrative Procedure Act, but on the basis of its prior cases establishing the standard for judicial review of agency action. Commenting that “[i]n dealing with technical and complex matters like these, the Commission must necessarily have wide discretion in formulating appropriate solutions,” the Court went on to conclude that the Commission “has not adequately explained its departure from prior norms and has not sufficiently spelled out the legal basis of its decision.” 347 U. S., at 652-653. For the reasons previously stated, we find no such infirmities here. This Court has held that the Administrative Procedure Act applies to proceedings before the Interstate Commerce Commission. Minneapolis & St. Louis R. Co. v. United States, 361 U. S. 173, 192 (1959). Appellees claim that the Commission’s procedure here departed from the provisions of 5 U. S. C. §§ 556 and 557 of the Act. Those sections, however, govern a rule-making proceeding only when 5 U. S. C. § 553 so requires. The latter section, dealing generally with rulemaking, makes applicable the provisions of §§ 556 and 557 only “[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing... The Esch Act, authorizing the Commission “after hearing, on a complaint or upon its own initiative without complaint, [to] establish reasonable rules, regulations, and practices with respect to car service...,” 49 U. S. C. §1 (14) (a), does not require that such rules “be made on the record.” 5 U. S. C. § 553. That distinction is determinative for this case. “A good deal of significance lies in the fact that some statutes do expressly require determinations on the record.” 2 K. Davis, Administrative Law Treatise § 13.08, p. 225 (1958). Sections 556 and 557 need be applied “only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be ‘on the record.’ ” Siegel v. Atomic Energy Comm’n, 130 U. S. App. D. C. 307, 314, 400 F. 2d 778, 785 (1968); Joseph E. Seagram & Sons Inc. v. Dillon, 120 U. S. App. D. C. 112, 115 n. 9, 344 F. 2d 497, 500 n. 9 (1965). Cf. First National Bank v. First Federal Savings & Loan Assn., 96 U. S. App. D. C. 194, 225 F. 2d 33 (1955). We do not suggest that only the precise words “on the record” in the applicable statute will suffice to make §§ 556 and 557 applicable to rule-making proceedings, but we do hold that the language of the Esch Car Service Act is insufficient to invoke these sections. Because the proceedings under review were an exercise of legislative rulemaking power rather than adjudicatory hearings as in Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), and Ohio Bell Telephone Co. v. Public Utilities 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_jurisdiction	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ. NORFOLK & WESTERN RAILWAY CO. et al. v. AMERICAN TRAIN DISPATCHERS’ ASSOCIATION et al. No. 89-1027. Argued December 3, 1990 Decided March 19, 1991 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, Scalia, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 134. Jeffrey S. Berlin argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 89-1027 were Mark E. Martin and William P. Stallsmith, Jr. James S. Whitehead, Nicholas S. Yovanovic, and James D. Tomola filed briefs for petitioner in No. 89-1028. Jeffrey S. Minear argued the cause for the federal respondents in support of petitioners in both cases pursuant to this Court’s Rule 12.4. On the briefs were Acting Solicitor General Roberts, Deputy Solicitor General Shapiro, Lawrence S. Robbins, RobeH S. Burk, Henri F. Rush, and John J. McCarthy, Jr. William G. Mahoney argued the cause for the union respondents in both cases. With him on the brief was John O’B. Clarke, Jr. Together with No. 89-1028, CSX Transportation, Inc. v. Brotherhood of Railway Carmen et al., also on certiorari to the same court. Richard T. Comvay, Ralph J. Moore, Jr., D. Eugenia Langan, and David P. Lee filed a brief for the National Railway Labor Conference as amicus curiae urging reversal. Justice Kennedy delivered the opinion of the Court. The Interstate Commerce Commission has the authority to approve rail carrier consolidations under certain conditions. 49 U. S. C. § 11301 et seq. A carrier in an approved consolidation “is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let [it] carry out the transaction... § 11341(a). These cases require us to decide whether the carrier’s exemption under § 11341(a) “from all other law” extends to its legal obligations under a collective-bargaining agreement. We hold that it does. I A “Prior to 1920, competition was the desideratum of our railroad economy.” St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298, 315 (1954). Following a period of Government ownership during World War I, however,“many of the railroads were in very weak condition and their continued survival was in jeopardy.” Ibid. At that time, the Nation made a commitment to railroad carrier consolidation as a means of promoting the health and efficiency of the railroad industry. Beginning with the Transportation Act of 1920, ch. 91, 41 Stat. 456, “consolidation of the railroads of the country, in the interest of economy and efficiency, became an established national policy... so intimately related to the maintenance of an adequate and efficient rail transportation system that the ‘public interest’ in the one cannot be dissociated from that in the other.” United States v. Lowden, 308 U. S. 225, 232 (1939). See generally St. Joe Paper Co. v. Atlantic Coast Line R. Co., supra, at 315-321. Chapter 113 of the Interstate Commerce Act, recodified in 1978 at 49 U. S. C. § 11301 et seq., contains the current statement of this national policy. The Act grants the Interstate Commerce Commission exclusive authority to examine, condition, and approve proposed mergers and consolidations of transportation carriers within its jurisdiction. § 11343(a)(1). The Act requires the Commission to “approve and authorize” the transactions when they are “consistent with the public interest.” § 11344(c). Among the factors the Commission must consider in making its public interest determination are “the interests of carrier employees affected by the proposed transaction.” § 11344(b)(1)(D). In authorizing a merger or consolidation, the Commission “may impose conditions governing the transaction.” § 11344(c). Once the Commission approves a transaction, a carrier is “exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let [it] carry out the transaction.” § 11341(a). When a proposed merger involves rail carriers, the Act requires the Commission to impose labor-protective conditions on the transaction to safeguard the interests of adversely affected railroad employees. § 11347. In New York Dock Railway—Control—Brooklyn Eastern Dist. Terminal, 360 I. C. C. 60, 84-90, aff’d sub nom. New York Dock Railway v. United States, 609 F. 2d 83 (CA2 1979), the Commission announced a comprehensive set of conditions and procedures designed to meet its obligations under §11347. Section 2 of the New York Dock conditions provides that the “rates of pay, rules, working conditions and all collective bargaining and other rights, privileges and benefits... under applicable laws and/or existing collective bargaining agreements... shall be preserved unless changed by future collective bargaining agreements.” 360 I. C. C., at 84. Section 4 sets forth negotiation and arbitration procedures for resolution of labor disputes arising from an approved railroad merger. Id., at 85. Under §4, a merged or consolidated railroad which plans an operational change that may cause dismissal or displacement of any employee must provide the employee and his union 90 days’ written notice. Ibid. If the carrier and union cannot agree on terms and conditions within 30 days, each party may submit the dispute for an expedited “final, binding and conclusive” determination by a neutral arbitrator. Ibid. Finally, the New York Dock conditions provide affected employees with up to six years of income protection, as well as reimbursements for moving costs and losses from the sale of a home. See id., at 86-89 (§§5-9, 12). B The two cases before us today involve separate ICC orders exempting parties to approved railway mergers from the provisions of collective-bargaining agreements. 1. In No. 89-1027, the Commission approved an application by NWS Enterprises, Inc., to acquire control of two previously separate rail carriers, petitioners Norfolk and Western Railway Company (N&W) and Southern Railway Company (Southern). See Norfolk Southern Corp.—Control—Norfolk & W. R. Co. and Southern R. Co., 366 I. C. C. 173 (1982). In its order approving control, the Commission imposed the standard Neto York Dock labor-protective conditions and noted the possibility that “further displacement [of employees] may arise as additional coordinations occur.” 366 I. C. C., at 230-231. In September 1986, this possibility became a reality. The carriers notified the American Train Dispatchers’ Association, the bargaining representative for certain N&W employees, that they proposed to consolidate all “power distribution” — the assignment of locomotives to particular trains and facilities — for the N&W-Southern operation. To effect the efficiency move, the carriers informed the union that they would transfer work performed at the N&W power distribution center in Roanoke, Virginia, to the Southern center in Atlanta, Georgia. The carriers proposed an implementing agreement in which affected N&W employees would be made management supervisors in Atlanta, and would receive increases in wages and benefits in addition to the relocation expenses and wage protections guaranteed by the New York Dock conditions. The union contended that this proposal involved a change in the existing collective-bargaining agreement that was subject to mandatory bargaining under the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq. The union also maintained that the carriers were required to preserve the affected employees’ collective-bargaining rights, as well as their right to union representation under the RLA. Pursuant to § 4 of the New York Dock procedures, the parties negotiated concerning the terms of the implementing agreement, but they failed to resolve their differences. As a result, the carriers invoked the New York Dock arbitration procedures. After a hearing, the arbitration committee ruled in the carriers’ favor. The committee noted that the transfer of work to Atlanta was an incident of the control transaction approved by the ICC, and that it formed part of the “additional coordinations” the ICC predicted would be necessary to achieve “greater efficiencies.” The committee also held it had the authority to abrogate the provisions of the collective-bargaining agreement and of the RLA as necessary to implement the merger. Finally, it held that because the application of the N&W bargaining agreement would impede the transfer, the transferred employees did not retain their collective-bargaining rights. The union appealed to the Commission, which affirmed by a divided vote. It explained that “[i]t has long been the Commission’s view that private collective bargaining agreements and [Railway Labor Act] provisions must give way to the Commission-mandated procedures of section 4 [of the New York Dock conditions] when parties are unable to agree on changes in working conditions required to implement a transaction authorized by the Commission.” App. to Pet. for Cert, in No. 89-1027, p. 33a. Accordingly, the Commission upheld the arbitration committee’s determination that the “compulsory, binding arbitration required by Article I, section 4 of New York Dock, took precedence over RLA procedures whether asserted independently or based on existing collective bargaining agreements.” Id., at 35a. The Commission also held that because the work transfer was incident to the approved merger, it was “immunized from conflicting laws by section 11341(a).” Ibid. Noting that “Composition of the collective bargaining agreement would jeopardize the transaction because the work rules it mandates are inconsistent with the carriers’ underlying purpose of integrating the power distribution function,” the Commission upheld the decision to override the collective-bargaining agreement and RLA provisions. Id., at 37a. 2. In No. 89-1028, the Commission approved an application by CSX Corporation to acquire control of the Chessie System, Inc., and Seaboard Coastline Industries, Inc. CSX Corp. —Control—Chessie System, Inc., and Seaboard Coastline Industries, Inc., 363 I. C. C. 521 (1980). Chessie was the parent of the Chesapeake and Ohio Railway Company and the Baltimore and Ohio Railway Company; Seaboard was the parent of the Seaboard Coast Line Railroad Company. In approving the control acquisition, the Commission imposed the New York Dock conditions and recognized that “additional coordinations may occur that could lead to further employee displacements.” 363 I. C. C., at 589. In August 1986, the consolidated carrier notified respondent Brotherhood of Railway Carmen that it planned to close Seaboard’s heavy freight car repair shop at Waycross, Georgia, and transfer the Waycross employees to Chessie’s similar shop in Raceland, Kentucky. The carrier informed the Brotherhood that the proposed transfer would result in a net decrease of jobs at the two shops. Pursuant to New York Dock, the carrier and the union negotiated concerning the terms of an agreement to implement the transfer. The sticking point in the negotiations involved a 1966 collective-bargaining agreement between the union and Seaboard known as the “Orange Book.” The Orange Book provided that the carrier would employ each covered employee and maintain each employee’s work conditions and benefits for the remainder of the employee’s working life. The Brotherhood contended that the Orange Book prevented CSX from moving work or covered employees from Waycross to Raceland. When negotiations broke down, both the union and the carrier invoked the arbitration procedures under §4 of New York Dock. The arbitration committee ruled for the carrier. It agreed with the union that the Orange Book prohibited the proposed transfer of work and employees. It determined, however, that it could override any Orange Book or RLA provision that impeded an operational change authorized or required by the ICC’s decision approving the original merger. The committee then held that the carrier could transfer the heavy repair work, which it found necessary to the original control acquisition, but could not transfer employees protected by the Orange Book, which it found would only slightly impair the original control acquisition. Both parties appealed the award to the Commission. A divided Commission affirmed in part and reversed in part. The Commission agreed the committee possessed authority to override collective-bargaining rights and RLA rights that prevent implementation of a proposed transaction. It reasoned, however, that “[ijmposition of an Orange Book employee exception would effectively prevent implementation of the proposed transaction.” CSX Corp.—Control—Chessie System, Inc. and Seaboard Coast Line Industries, Inc., 4 I. C. C. 2d 641, 650 (1988). The Commission thus affirmed the arbitration committee’s order permitting the transfer of work but reversed the holding that the carriers could not transfer Orange Book employees. 3. The unions appealed both cases to the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals considered the cases together and reversed and remanded to the Commission. Brotherhood of Railway Carmen v. ICC, 279 U. S. App. D. C. 239, 880 F. 2d 562 (1989). The court held that § 11341(a) does not authorize the Commission to relieve a party of collective-bargaining agreement obligations that impede implementation of an approved transaction. The court stated various grounds for its conclusion. First, because the court did not read the phrase “all other law” in § 11341(a) to include “all legal obstacles,” it found “no support in the language of the statute” to apply the statute to obligations imposed by collective-bargaining agreements. Id., at 244, 880 F. 2d, at 567. Second, the court analyzed the Transportation Act of 1920, ch. 91, §407, 41 Stat. 482, which contained a predecessor to § 11341(a), and found that Congress “did not intend, when it enacted the immunity provision, to override contracts.” 279 U. S. App. D. C., at 247, 880 F. 2d, at 570. The court noted that Congress had “focused nearly exclusively... on specific types of laws it intended to eliminate — all of which were positive enactments, not common law rules of liability, as on a contract.” Ibid. The court further noted that Congress had often revisited the immunity provision without making it clear that it included contracts or collective-bargaining agreements. Ibid. Finally, the court did not defer to the ICC’s interpretation of the Act, presumably because it determined that the Commission’s interpretation was belied by the contrary “ ‘unambiguously expressed intent of Congress,’” id., at 244, 880 F. 2d, at 567 (quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984)). In ruling that § 11341(a) did not apply to collective-bargaining agreements, the court “decline[d] to address the question” whether the section could operate to override provisions of the RLA. Brotherhood of Railway Carmen, supra, at 247-250, 880 F. 2d, at 570-573. It also declined to consider whether the labor-protective conditions required by § 11347 are exclusive, or whether §4 of the New York Dock conditions gives an arbitration committee the right to override provisions of a collective-bargaining agreement. 279 U. S. App. D. C., at 250, 880 F. 2d, at 573. The court remanded the case to the Commission for a determination on these issues. After the Court of Appeals denied the carriers’ petitions for rehearing, the carriers in the consolidated cases filed petitions for certiorari, which we granted on March 26, 1990. 494 U. S. 1055. We now reverse. HH Title 49 U. S. C. § 11341(a) provides: "... A carrier, corporation, or person participating in that approved or exempted transaction is exempt from the antitrust laws and from all other law, including State and municipal law, as necessary to let that person carry out the transaction, hold, maintain, and operate property, and exercise control or franchises acquired through the transaction....” We address the narrow question whether the exemption in § 11341(a) from “all other law” includes a carrier’s legal obligations under a collective-bargaining agreement. By its terms, the exemption applies only when necessary to carry out an approved transaction. These predicates, however, are not at issue here, for the Court of Appeals did not pass on them and the parties do not challenge them. For purposes of this decision, we assume, without deciding, that the Commission properly considered the public interest factors of § 11344(b)(1) in approving the original transaction, that its decision to override the carriers’ obligations is consistent with the labor-protective requirements of § 11347, and that the override was necessary to the implementation of the transaction within the meaning of § 11341(a). Under these assumptions, we hold that the exemption from “all other law” in § 11341(a) includes the obligations imposed by the terms of a collective-bargaining agreement. As always, we begin with the language of the statute and ask whether Congress has spoken on the subject before us. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U. S., at 842-843. The contested language in § 11341(a), exempting carriers from “the antitrust laws and all other law, including State and municipal law,” is clear, broad, and unqualified. It does not admit of the distinction the Court of Appeals drew, based on its analysis of legislative history, between positive enactments and common-law rules of liability. Nor does it support the Court of Appeals’ conclusion that Congress did not intend the immunity clause to apply to contractual obligations. By itself, the phrase “all other law” indicates no limitation. The circumstance that the phrase “all other law” is in addition to coverage for “the antitrust laws” does not detract from this breadth. There is a canon of statutory construction which, on first impression, might seem to dictate a different result. Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration. See Arcadia v. Ohio Power Co., 498 U. S. 73, 84-85 (1990). The canon does not control, however, when the whole context dictates a different conclusion. Here, there are several reasons the immunity provision cannot be interpreted to apply only to antitrust laws and similar statutes. First, because “[rjepeals of the antitrust laws by implication from a regulatory statute are strongly disfavored,” United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350 (1963), Congress may have determined that it should make a clear and separate statement to include antitrust laws within the general exemption of § 11341(a). Second, the otherwise general term “all other law” “includes]” (but is not limited to) “State and municipal law.” This shows that “all other law” refers to more than laws related to antitrust. Also, the fact that “all other law” entails more than “the antitrust laws,” but is not limited to “State and municipal law,” reinforces the conclusion, inherent in the word “all,” that the phrase “all other law” includes federal law other than the antitrust laws. In short, the immunity provision in § 11341 means what it says: A carrier is exempt from all law as necessary to carry out an ICC-approved transaction. The exemption is broad enough to include laws that govern the obligations imposed by contract. “The obligation of a contract is ‘the law which binds the parties to perform their agreement.’” Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 429 (1934) (quoting Sturges v. Crowninshield, 4 Wheat. 122, 197 (1819)). A contract depends on a regime of common and statutory law for its effectiveness and enforcement. “Laws which subsist at the time and place of the making of a contract, and where it is to be performed, enter into and form a part of it, as fully as if they had been expressly referred to or incorporated in its terms. This principle embraces alike those laws which affect its construction and those which affect its enforcement or discharge.” Farmers and Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U. S. 649, 660 (1923). A contract has no legal force apart from the law that acknowledges its binding character. As a result, the exemption in § 11341(a) from “all other law” effects an override of contractual obligations, as necessary to carry out an approved transaction, by suspending application of the law that makes the contract binding. Schwabacher v. United States, 334 U. S. 182 (1948), which construed the immediate precursor of § 11341(a), §5(11) of the Transportation Act of 1940, ch. 722, §7, 54 Stat. 908-909, supports this conclusion. In Schwabacher, minority stockholders in a carrier involved in an ICC-approved merger complained that the terms of the merger diminished the value of their shares as guaranteed by the corporate charter and thus “deprived [them] of contract rights under Michigan law... 334 U. S., at 188. We explained that the Commission was charged under the Act with passing upon and approving all capital liabilities assumed or discharged by the merged company, and that once the Commission approved a merger in the public interest and on just and reasonable terms, the immunity provision relieved the parties to the merger of “restraints, limitations, and prohibitions of law, Federal, State, or municipal,” as necessary to carry out the transaction. Id., at 194-195, 198. We noted that before approving the merger, the Commission had a duty “to see that minority interests are protected,” and emphasized that any such minority rights were, “as a matter of federal law, accorded recognition in the obligation of the Commission not to approve any plan which is not just and reasonable.” Id., at 201. Once these interests were accounted for, however, “[i]t would be inconsistent to allow state law to apply a liquidation basis [for valuation] to what federal law designates as a basis for continued public service.” Id., at 200. Relying in part on the immunity provision, we held the contract rights protected by state law did not survive the merger agreement found by the Commission to be in the public interest. Id., at 194-195, 200-201. Because the Commission had disclaimed jurisdiction to settle the shareholders’ complaints, we remanded the case to the Commission to ensure that the terms of the merger were just and reasonable. Id., at 202. Just as the obligations imposed by state contract law did not survive the merger at issue in Schwabacher, the obligations imposed by the law that gives force to the carriers’ collective-bargaining agreements, the RLA, do not survive the merger in this case. The RLA governs the formation, construction, and enforcement of the labor-management contracts in issue here. It requires carriers and employees to make reasonable efforts “to make and maintain” collective-bargaining agreements, 45 U. S. C. § 152 First, and to refrain from making changes in existing agreements except in accordance with RLA procedures, 45 U. S. C. §§152 Seventh, 156. The Act “extends both to disputes concerning the making of collective agreements and to grievances arising under existing agreements.” Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 242 (1950). As the law which gives “legal and binding effect to collective agreements,” Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U. S. 142, 156 (1969), the RLA is the law that, under § 11341(a), is superseded when an ICC-approved transaction requires abrogation of collective-bargaining obligations. See ICC v. Locomotive Engineers, 482 U. S. 270, 287 (1987) (Stevens, J., concurring in judgment); Brotherhood of Locomotive Engineers v. Boston & Maine Corp., 788 F. 2d 794, 801 (CA1 1986); Missouri Pacific R. Co. v. United Transportation Union, 782 F. 2d 107, 111 (CA8 1986); Burlington Northern, Inc. v. American Railway Supervisors Assn., 503 F. 2d 58, 62-63 (CA7 1974); Bundy v. Penn Central Co., 455 F. 2d 277, 279-280 (CA6 1972); Nemitz v. Norfolk & Western R. Co., 436 F. 2d 841, 845 (CA6), aff’d, 404 U. S. 37 (1971); Brotherhood of Locomotive Engineers v. Chicago & N. W. R. Co., 314 F. 2d 424 (CA8 1963); Texas & N. O. R. Co. v. Brotherhood of Railroad Trainmen, 307 F. 2d 151, 161-162 (CA5 1962); Railway Labor Executives Assn. v. Guilford Transp. Industries, Inc., 667 F. Supp. 29, 35 (Me. 1987), aff’d, 843 F. 2d 1383 (CA1 1988). Our determination that § 11341(a) supersedes collective-bargaining obligations via the RLA as necessary to carry out an ICC-approved transaction makes sense of the consolidation provisions of the Act, which were designed to promote “economy and efficiency in interstate transportation by the removal of the burdens of excessive expenditure.” Texas v. United States, 292 U. S. 522, 534-535 (1934). The Act requires the Commission to approve consolidations in the public interest. 49 U. S. C. § 11343(a)(1). Recognizing that consolidations in the public interest will “result in wholesale dismissals and extensive transfers, involving expense to transferred employees” as well as “the loss of seniority rights,” United States v. Lowden, 308 U. S. 225, 233 (1939), the Act imposes a number of labor-protecting requirements to ensure that the Commission accommodates the interests of affected parties to the greatest extent possible. 49 U. S. C. §§ 11344(b)(1)(D), 11347; see also New York Dock Railway-Control—Brooklyn Eastern Dist. Terminal, 360 I. C. C. 60 (1979). Section 11341(a) guarantees that once these interests are accounted for and once the consolidation is approved, obligations imposed by laws such as the RLA will not prevent the efficiencies of consolidation from being achieved. If § 11341(a) did not apply to bargaining agreements enforceable under the RLA, rail carrier consolidations would be difficult, if not impossible, to achieve. The resolution process for major disputes under the RLA would so delay the proposed transfer of operations that any efficiencies the carriers sought would be defeated. See, e. g., Burlington Northern R. Co. v. Maintenance of Way Employes, 481 U. S. 429, 444 (1987) (resolution procedures for major disputes “virtually endless”); Detroit & T. S. L. R. Co. v. United Transportation Union, 396 U. S. 142, 149 (1969) (dispute resolution under RLA involves “an almost interminable process”); Railway Clerks v. Florida East Coast R. Co., 384 U. S. 238, 246 (1966) (RLA procedures are “purposely long and drawn out”). The immunity provision of § 11341(a) is designed to avoid this result. We hold that, as necessary to carry out a transaction approved by the Commission, the term “all other law” in § 11341(a) includes any obstacle imposed by law. In this case, the term “all other law” in § 11341(a) applies to the substantive and remedial laws respecting enforcement of collective-bargaining agreements. Our construction of the clear statutory command confirms the interpretation of the agency charged with its administration and expert in the field of railroad mergers. We affirm the Commission’s interpretation of § 11341(a), not out of deference in the face of an ambiguous statute, but rather because the Commission’s interpretation is the correct one. This reading of § 11341(a) will not, as the Court of Appeals feared, lead to bizarre results. Brotherhood of Railway Carmen v. ICC, 279 U. S. App. D. C., at 244, 880 F. 2d, at 567. The immunity provision does not exempt carriers from all law, but rather from all law necessary to carry out an approved transaction. We reiterate that neither the conditions of approval, nor the standard for necessity, is before us today. It may be, as the Commission held on remand from the Court of Appeals, that the scope of the immunity provision is limited by § 11347, which conditions approval of a transaction on satisfaction of certain labor-protective conditions. See n. 2, supra. It also might be true that “[t]he breadth of the exemption [in § 11341(a)] is defined by the scope of the approved transaction....” ICC v. Locomotive Engineers, supra, at 298 (Stevens, J., concurring in judgment). We express no view on these matters, as they are not before us here. The judgment of the Court of Appeals is reversed, and the cases are remanded for proceedings consistent with this opinion. It is so ordered. Justice Stevens, with whom Justice Marshall joins, dissenting. The statutory exemption that the Court construes today had its source in § 407 of the Transportation Act of 1920 (1920 Act). 41 Stat. 482. Its wording was slightly changed in 1940, 54 Stat. 908-909, and again in 1978, 92 Stat. 1434. There is, however, no claim that either of those amendments modified the coverage of the exemption in any way. It is therefore appropriate to begin with a consideration of the purpose and the text of the 1920 Act. Before the First World War, the railroad industry had been the prime target of antitrust enforcement. In 1920, however, Congress adopted a new national transportation policy that expressly favored the consolidation of railroads. The policy of consolidation embodied in the 1920 Act would obviously have been frustrated by the federal antitrust laws had Congress not chosen to exempt explicitly all approved mergers from these laws. Section 407 of that Act provided, in part: “The carriers affected by any order made under the foregoing provisions of this section... shall be, and they are hereby, relieved from the operation of the ‘antitrust laws,’... and of all other restraints or prohibitions by law, State or Federal, in so far as may be necessary to enable them to do anything authorized or required by any order made under and pursuant to the foregoing provisions of this section.” 41 Stat. 482. Both the background and the text of §407 make it absolutely clear that its primary focus was on federal antitrust laws. Sensibly, however, Congress wrote that section using language broad enough to cover any other federal or state law that might otherwise forbid the consummation of any approved merger or prevent the immediate operation of its properties under a new corporate owner. Not a word in the statute, or in its legislative history, contains any hint that the approval of a merger by the Interstate Commerce Commission (ICC) would impair the obligations of valid and otherwise enforceable private contracts. Given the present plight of our Nation’s railroads, it may be wise policy to give the ICC a power akin to, albeit greater than, that of a bankruptcy court to approve a trustee’s rejection of a debtor’s executory private contracts. Through nothing short of a tour de force, however, can one find any such power in 49 U. S. C. § 11341, or in either of its predecessors. Obviously, consolidated carriers would find it useful to have the ability to disavow disadvantageous long-term leases on obsolete car repair facilities, employment contracts with high salaried executives whose services are no longer needed, as well as collective-bargaining agreements that provide costly job security to a shrinking work force. If Congress had intended to give the ICC such broad ranging power to impair contracts, it would have done so in language much clearer than anything that can be found in the present Act. The Court’s contrary conclusion rests on its reading of the “plain meaning” of the present statutory text and our decision in Schwabacher v. United States, 334 U. S. 182 (1948). Neither of these reasons is sufficient. Moreover, the Court’s reading is inconsistent with other unambiguous provisions in the statute. I With or without the ejusdem generis canon, I believe that the normal reader would assume that the text of § 11341 encompasses the antitrust laws, as well as other federal or state laws, that would otherwise prohibit rail carriers from consummating approved mergers, and nothing more. See ante, at 128. That text contains no suggestion that whenever a criminal law, tort law, or any regulatory measure impedes the efficient operation of a new merged carrier, the carrier can avoid such a restriction by virtue of the ICC approval of that merger. Nor does the text of § 11341 contain any sug-gestión that such an approval would impair the obligation of private contracts. Rather, as both an application of the ejusdem generis canon and an examination of the legislative history show, the purpose of the exemption was to relieve the carriers “from the operation of the antitrust and other restrictive or prohibitory laws.” H. R. Conf. Rep. No. 650, 66th Cong., 2d Sess., 64 (1920) (emphasis added). The Court speculates that the reason the 1920 Congress explicitly referred to the antitrust laws was simply to avoid the force of the rule that repeals of the antitrust laws by implication are not favored, citing United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350 (1963). In that case, however, the rule was announced in the context of the industry’s argument that federal regulatory approval of a transaction exempted the transaction from the antitrust laws even though the regulatory statute was entirely silent on the subject of exemption. Ibid. The authority cited in the Phila delphia decision to support this rule sheds no light on the question whether a statute creating a broad exemption for mergers would naturally be read to include all statutes that otherwise would have prohibited the consummation of a merger of large rail carriers. Of greater importance, however, is the Court’s rather remarkable assumption that an exemption “from ‘all other law’ ” should be read to encompass the restraints created by-private contract. Ante, at 129-130. Even if the text of the present Act could bear that reading, it is flatly inconsistent with the text of the 1920 Act, which relieved the participating carriers “from the operation of the ‘antitrust laws’... and of all other restraints or prohibitions by law, State or federal....” 41 Stat. 482. Moreover, given the respect that our legal system has always paid to the enforceability of private contracts — a respect that is evidenced by express language in the Constitution itself’ — there should be a powerful presumption against finding an implied authority to impair contracts in a statute that was enacted to alleviate a legitimate concern about the antitrust laws. Had Congress intended to convey the message the Court finds in § 11341, it surely would have said expressly that the exemption was from all restraints imposed by law or by private contract. HH i — i In my opinion, the Court’s reliance on the decision in Schwabacher v. United States, 334 U. S. 182 (1948), is misplaced. Question: What is the manner in which the Court took jurisdiction? A. cert B. appeal C. bail D. certification E. docketing fee F. rehearing or restored to calendar for reargument G. injunction H. mandamus I. original J. prohibition K. stay L. writ of error M. writ of habeas corpus N. unspecified, other Answer:
songer_appel1_4_2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. The TOWNSHIP OF BENTON, City of Benton Harbor and Benton Harbor Area Schools, Plaintiffs-Appellees, v. COUNTY OF BERRIEN, Defendant-Appellant, Economic Development Administration, Defendant. TOWNSHIP OF BENTON, City of Benton Harbor and Benton Harbor Area Schools, Plaintiffs-Appellees, v. ECONOMIC DEVELOPMENT ADMINISTRATION, Defendant-Appellant, County of Berrien, Defendant. Nos. 77-1689 and 77-1690. United States Court of Appeals, Sixth Circuit. Argued Dec. 16, 1977. Decided and Filed Feb. 8, 1978. John C. Bruha, John A. Smietanka, St. Joseph, Mich., Morton Hollander, Neil H. Koslowe, Appellate Section, Civil Division, Dept, of Justice, Washington, D. C., Frank S. Spies, U. S. Atty., Robert C. Greene, Grand Rapids, Mich., for defendant-appellant. Thomas N. Robinson, Jr., Robinson, Ford & Swanson, Benton Harbor, Mich., John D. Tully, Eugene E. Smary, Warner, Norcross & Judd, Grand Rapids, Mich., Yvonne Hughes, Benton Harbor, Mich., for plaintiffs-appellees. Before CELEBREZZE and MERRITT, Circuit Judges, and CECIL, Senior Circuit Judge. CELEBREZZE, Circuit Judge. This appeal is taken from a summary judgment in favor of local governmental units in Berrien County, Michigan, which found certain regulations adopted by Appellant Economic Development Administration (EDA) to be arbitrary and capricious and which enjoined distribution of funds pursuant to said regulations. Appellant County of Berrien (County) argues that summary judgment was not proper and that the District Court erred on the merits. (No. 77-1689). Appellant EDA has moved to dismiss its appeal. (No. 77-1690). The appeals were consolidated for oral argument. For reasons stated below, we deny the motion to dismiss, uphold the propriety of summary judgment, and reverse the judgment of the District Court on the merits. FACTS On July 22, 1976, Congress enacted into law over a Presidential veto the Local Public Works Capital Development and Investment Act of 1976. (1976 Act). The Act authorized appropriation of $2 billion and was designed “to alleviate the problem of national unemployment” and “to stimulate the national economy by assisting State and local governments to build badly needed public facilities.” The 1976 Act was to be administered by the Secretary of Commerce, acting through the EDA. The local governmental parties to this action, all in Berrien County, Michigan, applied for project funding under the 1976 Act but the only recipient of a grant was the Lake Michigan College District, a county-wide community college located in Benton Township. The award by the EDA and the regulations under which it was granted are not challenged in this lawsuit. Cf. City of Benton Harbor v. Richardson, 429 F.Supp. 1096 (W.D.Mich.1977). On May 13, 1977, the President signed into law the Public Works Employment Act of 1977. (1977 Act). The 1977 Act amended the 1976 Act, authorized appropriation of an additional $4 billion, and was designed to spur “a redoubled public works jobs effort as part of [the President’s] overall economic recovery package.” Administration of the 1977 Act became known as “Round II,” to distinguish it from “Round I” under the 1976 Act. Regulations for the implementation of Round II under the 1977 Act were published by the EDA on May 27, 1977, and amended on July 11, 1977. Administrative guidelines were issued on June 6, 1977. Quick action on the part of the EDA was necessary as the 1977 Act appropriation expired on September 30, 1977. The EDA chose to allocate Round II funds on the basis of unemployment figures, those areas with the highest unemployment rates receiving high priority. The EDA also chose to take into consideration Round I distributions by deducting Round I projects from Round II target areas so as to avoid concentrating funds in any given area. School districts were eligible to share in Round II grants but unemployment figures were not readily available for school districts, as such, so school districts were not considered separate planning targets in Round II. The EDA guidelines charged Round I school district awards against the township or city in which the school district project was located but not against the county in which the school district was located or served. The specific application of these EDA regulations and guidelines resulted in the following Round II allocations for the Ber-rien County area: County — $1,167,000; City of Benton Harbor (City) — $1,609,000. The grant to the City was apportioned between the City and the Benton Harbor Area School District (School District). As noted, school districts per se were not planning targets under Round II but were eligible for Round II funds. School districts were to share in the allocation to the general-purpose governmental unit (i. e., city, township or county) principally served by the school district, which in this case matched the City and School District. Since the City and School District could not jointly agree on how to divide the allocation, the EDA made the division itself, pursuant to its regulations, and divided the $1,609,000 equally between the City and School District. The Round I award to the Lake Michigan College District was charged against the Township of Benton (Township), in which that project was located, resulting in no Round II eligibility for the Township government notwithstanding that the Township government itself had received no Round I funding. Upon learning of its ineligibility under Round II, the Township brought this action against the EDA on June 24, 1977. The School District, the City and the County were added as parties, with the County aligning itself as a defendant. The thrust of the complaint was that the regulations and guidelines in question were arbitrary and capricious in that they deducted Round I school district awards from the city or township but not the county in which they were located in order to determine Round II eligibility. No rational reason existed, it was alleged, for this city and township vs. county distinction. Moreover, it was argued to the District Court that it was irrational to focus solely on the location of the Round I project rather than the area served by the Round I project. It was argued that it was possible to focus on the area served since the Round II regulations themselves focused on the area principally served by a school district in order to determine which general-purpose governmental unit to match it with in order to calculate its Round II allocation. Using the location of a school district project in making Round I deductions but the area served by a school district in making Round II allocations was seen as an unsupportable differentiation. The District Court entered a temporary restraining order on July 7, preventing the EDA from obligating any Round II funds to Berrien County applicants. On August 18, the District Court dissolved the temporary restraining order and took under advisement a motion for a preliminary injunction. This permitted the EDA to approve a grant to the County and allowed for negotiations among the parties, but the negotiations produced no settlement. On August 29, the EDA filed a motion for summary judgment alleging the plaintiffs had failed to state a claim upon which relief could be granted, basing the motion on its briefs and memoranda of law already filed. On September 12, the Township filed a memorandum in opposition to the EDA’s motion for summary judgment. On September 23, the School District filed a motion for summary judgment alleging the Round II regulations and guidelines were arbitrary, unreasonable and capricious. The District Court, which had not ruled on the EDA motion for summary judgment, granted the School District motion on September 27, only four days after it had been filed and before any response to it had been filed. No hearing was held on the motion. Instead, the District Court decided to “waive” the requirements of Federal Rule of Civil Procedure 56 and its own local court rule that opposing parties be given ten days to respond to motions for summary judgment and to request a hearing. The stated reason for such precipitous action was the need to resolve the case before the September 30 expiration date of the appropriation. The essence of the District Court opinion issued on September 27 was that the EDA regulations and guidelines, which deducted Round I grants to school districts from Round II targets for the township or city but not the county in which the project was located, were arbitrary and capricious. The Court said it was improper to focus solely on the location of the Round I project when the Round II regulations themselves focused on the area served by the school district to determine Round II planning target allocations. The Court especially emphasized the portion of the legislative history of the 1976 Act which said it was designed to assist “State and local governments in building badly needed public facilities.” The Court felt the EDA scheme was not yielding funding of “badly needed public facilities,” and the Court particularly expressed disapproval of the Round I grant to Lake Michigan College District. The Court seemed to suggest that any plan which did not produce substantial funding for the Benton Harbor public schools had to be unreasonable since it felt they had the greatest need in the county for new or remodeled buildings. The Court rejected EDA’s arguments that administrative ease coupled with the need for quick action justified the challenged aspects of the regulations and guidelines and that the location of a project was most likely to be the area benefitted by the project. The order of the District Court permanently enjoined the EDA from distributing any Round II funds in Berrien County, ordered EDA to rescind its award to the County, to reconsider its distribution of funds, and to submit a new proposed allocation to the Court “for review,” and further ordered that no Round II funds would es-cheat to the federal treasury after September 30, 1977. It is this order from which the County and EDA have appealed. MOTION TO DISMISS Pursuant to Federal Rule of Appellate Procedure 42(b), the EDA has moved this Court to dismiss its appeal. (No. 77-1690). The EDA argues that its appeal was from an interlocutory order of the District Court granting an injunction and thus permitted by 28 U.S.C. § 1292(a). It claims, however, that when a subsequent order was issued on October 20,1977, which lifted the injunction against distributing the undisputed portion of the Round II grant to the City (and School District), it realized that since the September 27 order was not a “final order” the better course would be to return to the District Court. The EDA could submit a proposed allocation which it felt would meet that Court’s approval and then appeal from the Court’s final order approving that proposed allocation of the funds, as authorized by 28 U.S.C. § 1291. It argues this would avoid piecemeal appeals. The School District has opposed this motion to dismiss on the grounds that it is merely an attempt to circumvent the expedited briefing schedule established by this Court. While motions to dismiss an appeal by an appellant are normally granted, this Court is of the opinion that the circumstances of this case warrant an exception to that general rule. Here only one of two appellants have moved to dismiss and counsel for the EDA noted at oral argument that the EDA’s position on the merits was precisely the same as the County’s. Dismissing only the EDA’s appeal would be a meaningless gesture since we must reach the merits of this action in the County’s appeal. Of course, the EDA would get the benefits of a favorable decision or the burden of an unfavorable decision in the County’s appeal by way of stare decisis, but we feel the better practice on the facts of this case is to keep the EDA in this appeal formally as well as practically. Therefore, the EDA’s motion to dismiss its appeal is denied. We also order that the EDA is to pay all court costs in case No. 77-1690 since it put Appellees to the time and trouble of responding to its motion. SUMMARY JUDGMENT The merits of this cause are presented in the County’s appeal, (No. 77-1689), although the following applies fully to the EDA’s appeal since we have denied its motion to dismiss. The County first argues that Federal Rule of Civil Procedure 56 and a similar local court rule prohibited granting the School District’s motion for summary judgment only four days after it had been filed and before any party had a chance to respond to it or request a hearing. The language of Rule 56(c) supports this argument: “The motion shall be served at least ten days before the time fixed for the hearing.” The argument is without merit, however, for two reasons. First, the EDA had moved for summary judgment in its favor almost a month before the School District’s motion was filed. Rule 56 has been construed to allow summary judgment to be entered in favor of the non-moving party. Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir. 1975); 6 Moore’s Federal Practice ¶ 56.12. Consequently, the EDA was subject to summary judgment and cannot complain of lack of ten days notice before granting the School District’s motion. Insofar as the County’s interests were identical to the EDA’s and both were cooperating in defending this lawsuit, it would not be unfair to treat the County similarly. A second reason exists, however, to dispose of the County’s claim that summary judgment was improper. This Court has held that the failure to comply with the ten day requirement in Rule 56(c) is subject to the harmless error rule, requiring a showing of prejudice to the party against whom summary judgment was granted in order to warrant reversal. Thacker v. Whitehead, 548 F.2d 634, 636 (6th Cir. 1977); Oppenheimer v. Morton Hotel Corp., 324 F.2d 766, 768 (6th Cir. 1963). See also Ikerd v. Lapworth, 435 F.2d 197, 203 (7th Cir. 1970); 6 Moore’s Federal Practice ¶ 56.14[1], at 56-357. Neither the County nor the EDA has pointed to any prejudice resulting from the District Court failing to comply with the terms of Rule 56. The legal issue had been fully briefed and no material factual disputes existed. We hold that the District Court’s failure to follow the dictates of Rule 56 was harmless error. THE REGULATIONS AND GUIDELINES Our discussion of the validity of the challenged regulations and guidelines need not be lengthy. We are concerned with regulations and guidelines enacted by an administrative agency pursuant to statutory authorization. Agency action is entitled to a presumption of regularity, although this does not “shield [its] action from a thorough, probing, in-depth review.” Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971); A.F.S.C.M.E. v. City of Cleveland, 484 F.2d 339 (6th Cir. 1973). “[T]he ultimate standard of review is a narrow one.” Overton Park, supra, 401 U.S. at 416, 91 S.Ct. at 824. The Supreme Court in Overton Park required a reviewing court to utilize a three-part test. First, did the agency act within the scope of its authority? Here EDA acted pursuant to an express statutory directive to enact regulations to administer the 1976 Act and the 1977 Act, and was clearly within the scope of its authority. Second, was the actual choice made “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law?” This issue is the crux of this lawsuit. The content of the regulations and guidelines in question and the EDA reasoning behind them has been set out earlier and need not be repeated here. We have thoroughly examined these regulations and guidelines and hold that they are not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” They represent a reasonable attempt by the EDA to allocate public works funds, designed primarily to reduce unemployment, in an equitable manner in a very short time with limited manpower. It is not arbitrary or capricious to deduct Round I school district grants from the city or township, but not the county, in which the project is located, in determining Round II allocations. The EDA could properly consider the differences between these governmental units in geographic area and services rendered in making the distinction that it did. Nor do these regulations and guidelines appear arbitrary or capricious in light of other Round II regulations which focus on the area principally served by a school district instead of just the local governmental unit in which the school is located. Agency regulations need not show the type of internal consistency urged by appellees. The overall scheme is not irrational. The third question is whether or not the agency followed the necessary procedural requirements. The procedures used in enacting the challenged regulations are not attacked here. This agency action thus meets all three tests set forth in Overton Park and is entitled to judicial approval. The District Court erred in striking down the regulations and substituting its judgment for that of the EDA. Overton Park, supra, 401 U.S. at 416, 91 S.Ct. 814; A.F.S. C.M.E., supra, 484 F.2d at 346. CONCLUSION For the foregoing reasons, the motion to dismiss is denied, the judgment of the District Court is reversed and the cause is remanded to the District Court for the purpose of dismissing the complaint. The order of dismissal, however, should include a provision similar to that contained in the order appealed from ordering that no Round II funds shall be allowed to escheat to the United States treasury by virtue of this litigation causing the September 30, 1977, deadline to be missed. With this one limitation preventing funds from escheat-ing to the federal treasury, the EDA shall be at liberty to disburse funds pursuant to its regulations and guidelines. Costs are taxed to Appellees in No. 77-1689 and to Appellant in No. 77 — 1690. It is so ordered. . Public Law 94-369, 90 Stat. 999, 42 U.S.C. § 6701, et seq. . H.R.Rep.No.94—1077, 94th Cong., 2d Session 2 (1976), reprinted in 1976 U.S.Code Cong, and Admin.News 1746, 1747. . Public Law 95-28, 91 Stat. 116, amending 42 U.S.C. § 6701, et seq. . H.R.Rep.No.95-20, 95th Cong., 1st Session 2 (1977), reprinted in 1977 U.S.Code Cong, and Admin.News pp. 150, 151. . 13 C.F.R. § 317.1 et seq., promulgated pursuant to Public Law 94-369, Title I, § 107, 42 U.S.C. § 6706, as amended by Public Law 95-28, Title I, § 104, 42 U.S.C. § 6706. . The appropriation under the 1977 Act expired at the end of the federal fiscal year ending September 30, 1977. Public Law 95-29, 91 Stat. 122, 123-24. The 1976 Act also contemplated quick action by the EDA. Public Law 94-369, Title I, § 107, 42 U.S.C. § 6706, as amended by Public Law 95-28, Title I, § 104, 42 U.S.C. § 6706, required the promulgation of regulations within thirty days after the effective date of the 1976 Act and required every application for funds to be acted on within sixty days of receipt. Public Law 94-369, Title I, § 106(d), 42 U.S.C. § 6705(d), also required that approval be given only to applicants which could give satisfactory assurance that on-site labor could begin within ninety days of project approval. . The District Court consolidated the School District’s summary judgment motion with the Township’s motion for a preliminary injunction so that the relief granted ran in favor of both parties. Since the School District shared in the City’s allocation, the City effectively was a party to the motion for summary judgment. . The County suggests in its brief that this concern for the Benton Harbor schools comes not from the record in this cause but from the fact that the District Court was simultaneously trying a desegregation case involving these schools and in that case had observed the poor condition of the school facilities. . The use of the word “may” in the last sentence of F.R.App.P. 42(b) indicates that the Court of Appeals has discretion in deciding whether or not to dismiss an appeal. . See note 5, supra. . 5 U.S.C. § 706(2)(A). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate 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:
sc_issuearea	I	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. BALDWIN COUNTY WELCOME CENTER v. BROWN No. 83-181. Decided April 16, 1984 Per Curiam. On November 6, 1979, respondent Celinda Brown filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging discriminatory treatment by her former employer, petitioner Baldwin County Welcome Center (Welcome Center). A notice of right to sue was issued to her on January 27, 1981. It stated that if Brown chose to commence a civil action “such suit must be filed in the appropriate United States District Court within ninety days of [her] receipt of this Notice.” Later, Brown mailed the notice to the United States District Court, where it was received on March 17, 1981. In addition, she requested appointment of counsel. On April 15, 1981, a United States Magistrate entered an order requiring that Brown make application for court-appointed counsel using the District Court’s motion form and supporting questionnaire. The Magistrate’s order to Brown reminded her of the necessity of filing a complaint within 90 days of the issuance of the right-to-sue letter. The questionnaire was not returned until May 6, 1981, the 96th day after receipt of the letter. The next day, the Magistrate denied Brown’s motion for appointment of counsel because she had not timely complied with his orders, but he referred to the District Judge the question whether the filing of the right-to-sue letter with the court constituted commencement of an action within the meaning of Rule 3 of the Federal Rules of Civil Procedure. On June 9, 1981, the 130th day after receipt of the right-to-sue letter, Brown filed an “amended complaint,” which was served on June 18. On December 24, 1981, the District Court held that Brown had forfeited her right to pursue her claim under Title VII of the Civil Rights Act of 1964 because of her failure to file a complaint meeting the requirements of Rule 8 of the Federal Rules of Civil Procedure within 90 days of her receipt of the right-to-sue letter. It noted that the right-to-sue letter did not qualify as a complaint under Rule 8 because there was no statement in the letter of the factual basis for the claim of discrimination, which is required by the Rule. The Court of Appeals for the Eleventh Circuit reversed, holding that the filing of a right-to-sue letter “tolls” the time period provided by Title VII. Judgment order reported at 698 F. 2d 1236 (1983). Although conceding that its interpretation was “generous,” the court stated that “[t]he remedial nature of the statute requires such an interpretation.” The court then stated that the filing of the right-to-sue letter “satisfied the ninety day statutory limitation.” The Welcome Center petitioned for a writ of certiorari from this Court. We grant the petition and reverse the judgment of the Court of Appeals. The section of Title VII at issue here states that within 90 days after the issuance of a right-to-sue letter “a civil action may be brought against the respondent named in the charge.” 86 Stat. 106, 42 U. S. C. §2000e-5(f)(1). Rule 3 of the Federal Rules of Civil Procedure states that “[a] civil action is commenced by filing a complaint with the court.” A complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). The District Court held that the right-to-sue letter did not satisfy that standard. The Court of Appeals did not expressly disagree, but nevertheless stated that the 90-day statutory period for invoking the court’s jurisdiction was satisfied, apparently concluding that the policies behind Title VII mandate a different definition of when an action is “commenced.” However, it identified no basis in the statute or its legislative history, cited no decision of this Court, and suggested no persuasive justification for its view that the Federal Rules of Civil Procedure were to have a different meaning in, or were not to apply to, Title VII litigation. Because we also can find no satisfactory basis for giving Title VII actions a special status under the Rules of Civil Procedure, we must disagree with the conclusion of the Court of Appeals. With respect to its apparent alternative holding that the statutory period for invoking the court’s jurisdiction is “tolled” by the filing of the right-to-sue letter, the Court of Appeals cited no principle of equity to support its conclusion. Brown does little better, relying only on her asserted “diligent efforts.” Nor do we find anything in the record to call for the application of the doctrine of equitable tolling. The right-to-sue letter itself stated that Brown had the right to sue within 90 days. Also, the District Court informed Brown that “to be safe, you should file the petition on or before the ninetieth day after the day of the letter from the EEOC informing you of your right to sue.” Finally, the order of April 15 from the Magistrate again reminded Brown of the 90-day limitation. This is not a case in which a claimant has received inadequate notice, see Gates v. Georgia-Pacific Corp., 492 F. 2d 292 (CA9 1974); or where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon, see Harris v. Walgreen’s Distribution Center, 456 F. 2d 588 (CA6 1972); or where the court has led the plaintiff to believe that she had done everything required of her, see Carlile v. South Routt School District RE 3-J, 652 F. 2d 981 (CA10 1981). Nor is this a case where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. See Villasenor v. Lockheed Aircraft Corp., 640 F. 2d 207 (CA9 1981); Wilkerson v. Siegfried Insurance Agency, Inc., 621 F. 2d 1042 (CA10 1980); Leake v. University of Cincinnati, 605 F. 2d 255 (CA6 1979). The simple fact is that Brown was told three times what she must do to preserve her claim, and she did not do it. One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence. Brown also contends that the doctrine of equitable tolling should apply because the Welcome Center has not demonstrated that it was prejudiced by her failure to comply with the Rules. This argument is unavailing. Although absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify such tolling is identified, it is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures. Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U. S. 807, 826 (1980), “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” The petition for certiorari is granted, respondent’s motion to proceed informa pauperis is granted, and the judgment of the Court of Appeals is reversed. It is so ordered. The presumed date of receipt of the notice was January 30,1981. Fed. Rule Civ. Proc. 6(e). Brown mailed the letter to the United States District Court for the Middle District of Alabama. The case was transferred to the Southern District of Alabama, however, because the events giving rise to the charge had occurred there. Neither the parties nor the courts below addressed the application of Rule 15(c) to the “amended complaint” filed on June 9. That Rule provides that amendment of a pleading “relates back” to the date of the original pleading. We do not believe that Rule 15(c) is applicable to this situation. The rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide. 3 J. Moore, Moore’s Federal Practice ¶ 15.15[3], p. 15-194 (1984). Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U. S. 41, 47 (1957). Because the initial “pleading” did not contain such notice, it was not an original pleading that could be rehabilitated by invoking Rule 15(c). Justice Stevens makes much of a letter dated March 21,1981, sent by Brown to the District Court in which she describes the basis of her claim. Suffice it to say that no one but the dissent has relied upon this letter to sustain Brown’s position. There is nothing in the record to suggest that the letter was considered by the District Court or the Court of Appeals, and Brown does not rely upon it before this Court as a basis for affirming the judgment. The issue before the Court of Appeals and before this Court is whether the filing of a right-to-sue letter with the District Court constituted the commencement of an action. The Court of Appeals held that it did and based its judgment on that ground. We reverse that judgment. Even if respondent had relied on the letter in this Court, we would not be required to assess its significance without having the views of the lower courts in the first instance. Justice Stevens also suggests that we should be more solicitous of the pleadings of the pro se litigant. It is noteworthy, however, that Brown was represented by counsel at the time of the dismissal by the District Court, before the Court of Appeals, and before this Court. Neither Brown nor her counsel ever requested that the letter in the record be construed as a complaint. It is not clear from the opinion of the Court of Appeals for how long the' statute is tolled. Presumably, under its view, the plaintiff has a “reasonable time” in which to file a complaint that satisfies the requirements of Rule 8. See Huston v. General Motors Corp., 477 F. 2d 1003 (CA8 1973). In this case, it was another 84 days until such a complaint was filed. Brown also contends that application of the doctrine of equitable tolling is mandated by our decision in Zipes v. Trans World Airlines, Inc., 455 U. S. 385 (1982). In Zipes, we held that the requirement of a timely filing of a charge of discrimination with the EEOC under 42 U. S. C. § 2000e-5(e) is not a jurisdictional prerequisite to a suit in district court and that it is subject to waiver and equitable tolling. Brown’s argument is without merit, for we did not in Zipes declare that the requirement need not ever be satisfied; we merely stated that it was subject to waiver and tolling. There was neither waiver nor tolling in this case. 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_respond1_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 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. John K. FORSYTHE, Plaintiff-Appellant, v. SAUDI ARABIAN AIRLINES CORP., Defendant-Appellee. No. 89-2356 Summary Calendar. United States Court of Appeals, Fifth Circuit. Oct. 10, 1989. Karen A. Lerner, Houston, Tex., for plaintiff-appellant. Farrell Bolz, Farrell Bolz & Associates, Houston, Tex., for defendant-appellee. Before REAVLEY, KING and JOHNSON, Circuit Judges. PER CURIAM: John Forsythe appeals the district court’s order denying his motion to alter or amend the court’s judgment that dismissed his case against Saudi Arabian Airlines Corporation. For the reasons set forth below, we VACATE and REMAND for further proceedings in conformance with this opinion. Appellant John K. Forsythe (Forsythe), an American citizen, entered into an employment agreement with appellee Saudi Arabian Airlines Corporation (Saudi) to provide services as a commercial airline pilot. The contract specified that all disputes would be resolved by the Labor and Settlement of Disputes Committee in Saudi Arabia and that the laws of Saudi Arabia would apply. Forsythe undertook his flying duties in Saudi Arabia and for the duration of his employment performed entirely outside of the United States. Unhappily, after less than a year with the airline Forsythe was discharged, purportedly for failing proficiency and evaluation checks. Forsythe did not contest his discharge in the Saudi Arabian forum contemplated in his employment agreement. Instead, he filed a petition in Texas state court, seeking damages for wrongful discharge. For-sythe alleged breach of contract, breach of the implied covenant of good faith and fair dealing, duress, and intentional infliction of emotional distress. Saudi petitioned for removal to federal district court based on its status as a “foreign state.” 28 U.S.C. § 1441(d). Promptly after the action was removed, Saudi filed a Rule 12(b) motion to dismiss, claiming failure to state a claim and lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602-1611. Saudi added an alternative ground of forum non conveniens in a supplemental motion. Curiously, Forsythe failed to contest Saudi’s FSIA immunity in his response to the motion to dismiss, or at any other time prior to his motion for a new trial. For-sythe did, however, file an amended complaint, in which he alleged that Saudi (1) solicited his services through an El Paso, Texas, newspaper advertisement, (2) initially contacted him in Texas, and (3) “made oral representations to [him] to induce him to enter into the contract the subject of this cause of action in El Paso, Texas, and in Kansas City, Missouri.” On December 8, 1988, the district court granted Saudi’s motion and entered a final judgment dismissing Forsythe’s case. The court found that Saudi was a “foreign state” and that none of the exceptions to immunity enumerated in the FSIA applied. Alternatively, the court concluded that forum non conveniens required that the suit be prosecuted in Saudi Arabia. Forsythe promptly filed a “Motion for New Trial,” which the district court denied. He now appeals the order denying his motion for new trial. Our first task is to identify the character of Forsythe’s postjudgment motion. This determination will then define our role in reviewing the district court’s denial of the motion. Forsythe styled his postjudgment motion a “Motion for New Trial,” without designating one of the Federal Rules of Civil Procedure. Both Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b) may offer a party the relief that Forsythe sought: a change in the court’s judgment. The rules differ in two important respects, however. First, a Rule 59(e) motion must be served no later than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time — up to one year after judgment for certain stated grounds, and “within a reasonable time” for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4). Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit prescribed in Rule 59(e). Consequently, his motion must be construed as a Rule 59(e) motion to alter or amend the order and concomitant judgment dismissing his case. We review the district court’s denial of a Rule 59(e) motion under an abuse of discretion standard. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986). The FSIA is the exclusive means by which a foreign state, as that term is defined in the Act, may be sued in a United States federal court. Under the FSIA, a foreign state is immune from suit — and the district court lacks jurisdiction — unless one of the specific exceptions contained in sections 1605-1607 is found to apply. 28 U.S.C. § 1604. Prior to the dismissal of his case, Forsythe did not attempt to persuade the court that any of the FSIA exceptions applied to divest Saudi of immunity in this case. He proffered neither legal arguments nor evidence outside the pleadings to bolster the jurisdictional facts that the court could consider in ruling on Saudi’s motion to dismiss. Moreover, he did not explain his failure to do so in his Rule 59(e) motion. In his motion, Forsythe argued for the first time that the “commercial activity” exception of section 1605(a)(2) should apply to Saudi’s job advertising and interviewing activities in the United States, thereby depriving Saudi of immunity. The order of December 8,1988, reflects that, on its own initiative, the district court specifically considered and rejected the merits of a section 1605(a)(2) exception. Forsythe appended an affidavit to his motion that contained factual assertions relevant to a nexus between Saudi’s commercial activities and the United States. However, this affidavit merely reiterated and expanded slightly on the claims contained in Forsythe’s First Amended Complaint. It presented no pertinent facts that were not already before the district judge when he entered judgment. See Natural Resources Defense Council, Inc. v. EPA, 705 F.Supp. 698, 701-02 (D.D.C.), vacated on other grounds, 707 F.Supp. 3 (D.D.C.1989) (district court properly exercises its discretion in declining to relitigate arguments and evidence already considered, or to consider new evidence that was available earlier, but not presented). Finally, Forsythe did not even address in his motion the district court’s alternative ground for ordering dismissal, forum non conveniens. Under these circumstances, we find that the district court acted well within its discretion in denying Forsythe’s Rule 59(e) motion. Our inquiry does not end there, however. Although Forsythe’s notice of appeal specifies that he is appealing the March 3, 1989 order, which denied his Rule 59(e) motion, it is apparent from his briefs that his actual intent is to appeal also from the judgment. We proceed on that basis. The faulty notice of appeal has not misled or prejudiced Saudi, since its appellee’s brief fully addresses the merits of both grounds for the district court’s order of dismissal. We turn, therefore, to a review of the district court's decision to dismiss For-sythe’s claims. Because we can dispose of this case on the basis of forum non conve-niens, we need not, and do not, review the district court’s determination that it lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act. A dismissal under the doctrine of forum non conveniens may be reversed only for a clear abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1166 (5th Cir.1987) (en banc), vacated and remanded on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, — U.S. -, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). Under the procedural framework announced in In re Air Crash Disaster, a district court considering a motion to dismiss for forum non conveniens is required first to determine if an adequate alternative forum exists to entertain the case, and then to weigh the private and public interest factors to determine whether the balance favors dismissal. In re Air Crash Disaster, 821 F.2d at 1165-66. The district judge is also required to set out his findings and conclusions supporting a forum non conveniens determination, because we will not perform a de novo review of this issue. In its order of dismissal, the district court determined that the Labor and Settlement of Disputes Committee in Saudi Arabia was an appropriate alternative forum for Forsythe to litigate his claim. Moreover, the parties had agreed in their contract to bring all disputes before this tribunal. There is no indication that a Saudi Arabian forum would treat Forsythe unfairly or deprive him of all remedies. Thus, the court’s conclusion that an adequate alternative forum existed was reasonable. In evaluating the private interests of the litigants, a court should be deferential to an American plaintiff’s choice of his home forum. Reyno, 454 U.S. at 255, 102 S.Ct. at 265. However, this factor cannot be given dispositive weight. Id. at 256 n. 23, 102 S.Ct. at 266 n. 23. The district court considered the other relevant private interest factors and concluded that Saudi Arabia would be the more convenient forum. The court noted Forsythe’s arguments that (1) it would be inconvenient for him to travel to Saudi Arabia, and (2) Saudi has significant contacts in Texas. However, the court concluded that Forsythe’s lawsuit centered around the alleged wrongful termination of his employment contract, which occurred in Saudi Arabia. Thus, the ease of access to witnesses and documents favors the Saudi Arabian forum. Even if the private conveniences of the litigants were nearly in balance, however, “a trial court has discretion to grant forum non conveniens dismissal upon finding that retention of jurisdiction would be unduly burdensome to the community, that there is little or no public interest in the dispute or that foreign law will predominate if jurisdiction is retained.” In re Air Crash Disaster, 821 at 1165-66. The court considered the uncontested fact that Saudi Arabian law would apply to this dispute, as provided in the parties’ choice-of-law provision. A district court’s avoidance of unnecessary problems involved in the application of foreign law is of “considerable signifi-canee.” See Feenerty v. Swiftdrill, Inc., 706 F.Supp. 519 (E.D.Tex.1989). The court also determined that the contract made the basis of this lawsuit was executed, and was allegedly breached, in Saudi Arabia. It contained choice-of-law and choice-of-forum provisions tying the dispute to that country. Furthermore, Saudi is a corporation wholly owned by the Saudi Arabian government. We acknowledge that our community has an interest in the hiring and firing of American citizens by foreign corporations; however, in this situation, Saudi Arabia appears to have a greater interest in resolving this dispute than does the United States. Reviewing all the factors considered by the district judge, we conclude that the court was neither unreasonable nor arbitrary in dismissing this case on the alternative basis of forum non conveniens. However, we believe that the court should have requested certain minimal stipulations from the defendant to protect Forsythe’s opportunity to seek relief in the Saudi Arabian forum. Therefore, we VACATE the judgment dismissing Forsythe’s lawsuit with prejudice and REMAND for entry of a judgment of dismissal without prejudice conditioned on Saudi’s agreement to submit to the jurisdiction of the courts of Saudi Arabia and to waive any defense of limitation. Costs shall be borne by Forsythe. VACATED and REMANDED. . For purposes of removal, § 1441(d) incorporates the definition of foreign state set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603(a): “A “foreign state” ... includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state....” Saudi is a corporation formed under the laws of Saudi Arabia and wholly owned by the government. The district court determined, and For-sythe does not dispute, that Saudi is an “agency or instrumentality" of Saudi Arabia, and thus a foreign state for jurisdictional purposes. . Forsythe apparently believed that Saudi based its claim of immunity solely on the forum selection clause contained in the parties’ contract, under which disputes would be submitted to the Labor and Settlement of Disputes Committee in Saudi Arabia. Forsythe argued in his response to Saudi’s motion to dismiss that ”[h]istorically, [forum selection clauses] have been found to be against public policy and have not been enforced.” The United States Supreme Court has explicitly rejected this view. In The Bremen v. Zapata Off-Shore Co., Chief Justice Burger established a strong presumption in favor of the validity of forum selection clauses. 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). ”[I]n the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside.” Id. at 15, 92 S.Ct. at 1916. See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 629, 631, 105 S.Ct. 3346, 3355, 3356, 87 L.Ed.2d 444 (1985) ("concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes” required enforcement of contractual arbitration clause; the Court noted the strong federal policy in favor of arbitral dispute resolution, particularly when international commercial transactions are involved, as well as a judicial commitment to the enforcement of freely negotiated choice-of-forum clauses); In re Fireman’s Fund Ins. Companies, 588 F.2d 93, 95 (5th Cir.1979) ("Where the parties have by contract selected a forum, it is incumbent upon the party resisting to establish that the choice was unreasonable, unfair, or unjust.") Forsythe’s attempt to distinguish his contract based on Saudi's greater bargaining position was unpersuasive, as the cases cited in his brief were dissimilar to these facts and did not involve international relations. .As explained below, we construe this motion as a Rule 59(e) motion to alter or amend a judgment. . Forsythe also alleged in his amended complaint that his written contract with Saudi provided that he would serve as a commercial airline pilot in the United States. The employment contract contained in the record on appeal indicates to the contrary, as no mention is made as to where services would be performed. For-sythe has not pursued this assertion on appeal. . The service date of Forsythe’s motion was December 19, 1988. However, under the rules for computing time periods of less than eleven days, Saturdays and Sundays are excluded. His motion was therefore timely. Fed.R.Civ.P. 6(a). . Of course, a party cannot waive subject matter jurisdiction by its silence. A federal court must make its own determination of whether it is empowered to hear a case. In making this determination, however, a district court may rely not only on the pleadings; it may consider conflicting evidence — contained in affidavits, for example — and make its own resolution of disputed jurisdictional facts. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Under the FSIA, Saudi carried the burden of persuading the court that it was entitled to immunity. Once it made a prima facie showing of FSIA protection, however, Forsythe assumed a burden of going forward with some facts to show that an exception to immunity existed. The ultimate burden of persuasion remained at all times on Saudi. See H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6616; 7b Moore, Wax-ner, Fink, Epstein, & Grotheer, Moore’s Federal Practice § 1604 (2d ed. 1989). In applying FSIA law to the facts of the lawsuit, the district court had only the assertions contained in Forsythe’s amended complaint to show Forsythe’s version of the jurisdictional facts. . 28 U.S.C. § 1605(a)(2) provides: (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. .The Supreme Court has determined, and this circuit has subsequently held, that an appeal is not lost due to a mistake in designating the judgment being appealed. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Kicklighter v. Nails by Jannee, Inc., 616 F.2d 734, 738-39 n. 1 (5th Cir. 1980); Woodham v. American Cystoscope Co., 335 F.2d 551, 555-56 (5th Cir.1964). Forsythe’s appeal is not time barred because, as explained above, a Rule 59(e) motion tolls the time for appealing a judgment under Fed.R.App.P. 4(a). Forsythe filed his notice of appeal within the prescribed thirty-day time period, which began to run from the date of the district court’s order denying his motion to alter or amend. Fed.R.App.P. 4(a)(4). . For the reasons stated below, we are vacating the district court’s judgment and remanding the case to that court for entry of a revised judgment. In the event the conditions of that dismissal are not met, and Forsythe is compelled to return to this forum, the district court should at that time reconsider its holding regarding Saudi’s immunity under the FSIA. If the court is satisfied with its prior determination, it should reinstate its dismissal, although without prejudice, based on lack of subject matter jurisdiction. Forsythe can then file a new notice of appeal within the period provided in Fed.R. App.P. 4(a), which period will begin to run from the date of the district court’s reinstated judgment. . We note that Forsythe has offered no explanation, either to the district court or to us on appeal, as to why he did not seek relief in the Labor and Settlement of Disputes Committee in Saudi Arabia while he was still in that country and had the opportunity to do so. . In a reply brief, Forsythe argues that it is not clear from the court’s order whether forum non conveniens was intended to exist as an alternative grounds for dismissal. We find this argument meritless. 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_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. CONTINENTAL INSURANCE COMPANIES, Appellee, v. NORTHEASTERN PHARMACEUTICAL AND CHEMICAL COMPANY, INC., Milton Turkel, Edwin B. Michaels and John W. Lee, Appellees, State of Missouri, Intervenor-Appellant. No. 85-1940. United States Court of Appeals, Eighth Circuit. Submitted Jan. 15, 1986. Decided Jan. 22, 1987. Rehearing En Banc Granted March 30,1987. Shelley A. Woods, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri. Karen Florini, Washington, D.C. for amicus — U.S. Gary R. Long, Kansas City, Mo., for Continental Ins. Co. Thomas W. Brunner, Washington, D.C., for amicus American Ins. Association. William D. Iverson, Washington, D.C., for amicus IBM. Jerome T. Wolf, Carl H. Helmstetter, James T. Price, Spencer, Fane, Britt & Browne, Kansas City, Mo., for amicus AT&T Technologies, Inc. Before HEANEY and McMILLIAN, Circuit Judges, and MURPHY, District Judge. Order published at 815 F.2d 51. The Honorable DIANA E. MURPHY, United States District Judge for the District of Minnesota, sitting by designation. HEANEY, Circuit Judge. This appeal raises the question of whether hazardous waste cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601-9657 (1982) (CERCLA) are recoverable under a liability policy that covers “property damage” that “occurs” during the life of the policy, where disposal and environmental contamination took place during the policy period but cleanup costs were incurred later. We reverse the district court’s order on Count I of Continental’s complaint, affirm its dismissal of the State of Missouri’s counterclaim, and hold that state and federal governments suffer “property damage” at the time hazardous wastes are improperly “released” into their environment and that cleanup costs are a recoverable measure of damages for this environmental property damage. We also affirm the district court’s dismissal without prejudice of Count II of Continental Insurance Company’s complaint relating to coverage for private individuals’ personal and property damage due to improper hazardous waste disposal. I. FACTS. From 1970 to 1972, the Northeastern Pharmaceutical and Chemical Company (NEPACCO) produced hexachlorophene at a chemical plant in Verona, Missouri. The process produced a variety of wastes, among which was dioxin, a highly toxic chemical. In July, 1971, NEPACCO made arrangements to dispose of at least eighty-five fifty-five-gallon drums of these wastes in a trench on a farm near Verona, Missouri (the “Denny farm” site). When the deteriorated drums were dumped in the trench in July, 1971, a “strong odor” shortly emerged, persisting for several months. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823, 828-30 (W.D. Mo.1984). Later in 1971 or 1972, NEPACCO hired Independent Petrochemical Corporation (IPC) which, in turn, hired Russell Bliss to dispose of more dioxin-contaminated wastes. In 1971, 1972, and 1973, Bliss allegedly spread thousands of gallons of these wastes on the premises of the Bubbling Springs Stables in Fenton, Missouri, and on the roads of Times Beach, Missouri. Later, in 1974, a Mr. Minker purchased twenty truckloads of contaminated dirt from the Bubbling Springs Ranch and used it as landfill on his property at West Rock Creek Road, Missouri (the “Minker/Stout/Romaine Creek” site). During the two-year period from 1970 to 1972 that NEPACCO was in business, it was insured under a Comprehensive General Liability Policy (CGL), issued by Continental. Three somewhat different policies were in effect from August 5, 1970, to August 5, 1971; August 5, 1971, to August 5, 1972; and August 5, 1972, to November 5, 1972. Each policy requires Continental to: pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies caused by an occurrence,[] and the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage. All three provide that: “[tjhis insurance applies only to bodily injury or property damage which occurs during the policy period.” In 1980, the EPA investigated the Denny farm site and found that the NEPACCO wastes in the trench and underlying soil contained “alarming[ly] high concentrations of dioxin.” Id. at 831. It cleaned up the site, and then sought to recover its costs through a lawsuit against NEPACCO and others. United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823 (the “EPA ” suit). The district court found NEPACCO and the other defendants jointly and severally liable under CERCLA for the cost of the cleanup. A separate appeal in that action is now pending before another panel of this Court. On March 7, 1983, a number of former residents of Times Beach and Imperial, Missouri, filed an action against NEPACCO and others which seeks recovery for personal injuries and property damage allegedly caused by the dumping of NEPACCO’s wastes at the Minker/Stout/Romaine Creek site and on the streets of Times Beach. Capstick v. Independent Petrochemical Corp., No. 832-0453 (Cir.Ct., City of St. Louis, Mo. filed Mar. 7, 1983) (the “Capstick ” suit). To protect against potential liability arising out of its status as insurance carrier for NEPACCO during the time NEPACCO’s hazardous wastes were improperly disposed of, Continental filed this action against NEPACCO and its former officers and directors. Count I seeks a declaration that Continental is under no duty to defend or indemnify NEPACCO for liability arising out of the EPA suit. Count II seeks the same declaration with respect to the Capstick suit. On November 14, 1984, Continental moved for summary judgment. NEPACCO and the other defendants failed to enter an appearance or file an answer. The State of Missouri was then granted leave to intervene to protect its interests arising out of claims that it had made against NEPACCO and the other defendants in a third hazardous-waste lawsuit filed in the United States District Court for the Eastern District of Missouri. Missouri v. Independent Petrochemical Corp., No. 83-3670 (E.D.Mo. filed Nov. 23, 1983) (the “IPC ” suit). The complaint in IPC alleges that NEPACCO, its officers, and others are liable under CERCLA for costs incurred by the state in excavating and removing dioxin-contaminated soil from the Mink-er/Stout/Romaine Creek site. The state filed an answer to Continental’s complaint and a counterclaim alleging that Continental is obligated to indemnify the state for the amount of any judgment imposed on NEPACCO in the underlying IPC lawsuit. On June 25, 1985, the district court granted summary judgment to Continental on Count I of its complaint (no insurance coverage for the EPA claims), and against the state on its counterclaim (no coverage for the IPC claims). The court reasoned that the cleanup costs sought by the United States and the state in the EPA and IPC suits are not “property damage” as that term is defined in the CGL policies and that “no * * * damages were incurred by the government entities during the policies’ effective dates” because the policies were only in effect from 1970 to 1972, and the cleanup costs were incurred later. The court also granted Continental’s motion to dismiss without prejudice Count II of its complaint (the Capstick claims), stating that “more specific findings of bodily injury and property damage” were needed first. The State of Missouri appeals. II. DISCUSSION. A. EPA and IPC Claims. The first issue is whether the district court erred in holding that cleanup costs under CERCLA are not “property damage” as defined in the CGL policies. Although the district court cited no case and gave no explanation for its holding, Continental and amicus AIA advance two arguments in support. Continental argues that only the actual owners of the land on which hazardous wastes are improperly disposed of sustain “property damage,” and that any injury suffered by governmental entities from the improper disposal is merely an economic injury. We disagree. The Supreme Court of the United States has held that state and federal governments suffer injury to their “quasi-sovereign” interests when pollutants are released into the soil, water, and air within their jurisdiction. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 619, 51 L.Ed.2d 1038, 1044 (1907) (state); cf. Illinois v. City of Milwaukee, 406 U.S. 91, 101-07, 92 S.Ct. 1385, 1391-94, 31 L.Ed.2d 712, 722-26 (1972) (federal). The question here is whether this injury to governmental “quasi-sovereign” interests constitutes “property damage” within the meaning of an insurance policy. Although the Supreme Court has not squarely confronted the issue, two thoughts expressed in cases decided by the Court lead us to reject Continental’s argument. First, it has implied that an injury to a government’s quasi-sovereign interest in natural resources is a form of property damage. Second, it has held that the government has power, in its quasi-sovereign capacity, to seek redress for the environmental property damage suffered by the actual owners of the land affected by pollution. In Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, for example, the State of Georgia brought suit against certain Tennessee copper companies to enjoin the discharge of noxious gases over its territory. In holding that it had jurisdiction and that Georgia was entitled to an injunction, the Court stated: The state owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air. It might have to pay individuals before it could utter that word, but with it remains the final power. The alleged damage to the state as a private owner is merely a make-weight, and we may lay on one side the dispute as to whether the destruction of forests has led to the gullying of its roads. 206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed. at 1044. The Court’s discussion of a governmental interest in “title” to all the soil, water, and air within its jurisdiction suggests that the government has a property interest in natural resources. A similar implication arises from Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331, 45 L.Ed. 497 (1901), where the Court held that Missouri was permitted to sue as parens patriae to enjoin the discharge of sewage from Chicago, Illinois, into the Illinois and Mississippi rivers: “impairment of the health and prosperity of the towns and cities of the state situated on the Mississippi river * * * would injuriously affect the entire state.” 180 U.S. at 241, 21 S.Ct. at 844, 45 L.Ed. at 512. The Court suggested that although a dispute between states over interstate waters may not involve “direct property rights” of a state, the injury to the state’s “quasi-sovereign” rights is akin to an injury to state property rights. Id. Furthermore, the Court stressed that in environmental damage suits, a state has the power to seek redress in court for the property damage caused to the general public. Id.; see also Maryland v. Louisiana, 451 U.S. 725, 766, 101 S.Ct. 2114, 2139, 68 L.Ed.2d 576, 608 (1981) (Rehnquist, J., dissenting on other grounds) (pointing out that when a state sues to advance its quasi-sovereign interests, it is not suing simply to protect the economic interests of its citizens). Similarly, in Toomer v. Witsell, 334 U.S. 385, 408, 68 S.Ct. 1156, 1168, 92 L.Ed. 1460 (1948), Mr. Justice Frankfurter, joined by Mr. Justice Jackson, concurring, stated: A state may care for its own in utilizing the bounties of nature within her borders because it has technical ownership of such bounties or, when ownership is in no one, because the state may for the common good exercise all the authority that technical ownership ordinarily confers. This conclusion is supported by statements in a wide array of cases and statutes that state and federal governments have property interests in wildlife, inter- and intrastate waters, and natural resources in general. Moreover, state and federal governments have “direct property interests” in public land holdings which may be damaged by environmental contamination. In light of these extensive statements of governmental property interests in environmental resources, it does not seem unreasonable to assume that an insurance company, providing liability coverage for a chemical producer, would contemplate environmental damage as a form of covered “property damage for which governments may seek recovery.” See Lansco, Inc. v. Department of Envtl. Protection, 138 N.J. Super. 275, 350 A.2d 520, 524-25 (1975), aff'd, 145 N.J.Super. 433, 368 A.2d 363 (1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977). The policies’ definition of “property damage” as damage to “tangible property” or “physical injury” seems to contemplate damage to tangible property such as land, trees, air, and water. Supportive of this is the inclusion in the latter two of the three policies at issue of clauses generally excluding environmental damage from coverage for property damage. See Port of Portland v. Water Quality Ins. Syndicate, 549 F.Supp. 233, 235 (D.Ore.1982) (The pollution exclusion clause “itself states that ‘property damage’ may result from the discharge of pollutants.”). Finally, all of the cases which have squarely considered Continental’s argument have rejected it. In Mraz v. American Universal Ins. Co., 616 F.Supp. 1173 (D.Md.1985), for example, the court rejected as “untenable” the insuror’s claim that state and federal governments do not sustain “property damage” for insurance policy purposes when hazardous wastes are improperly disposed of and ultimately cleaned up by the government. A similar conclusion was reached in Lansco, 350 A.2d at 524-25, and Kutsher’s Country Club Corp. v. Lincoln Ins. Co., 119 Misc.2d 889, 465 N.Y.S.2d 136, 139 (N.Y.Sup.Ct.1983). In sum, we agree with the position taken in Mraz, Lansco, and Kutsher’s that the improper release of toxic wastes may cause “property damage” not only to the actual owner of the land, water, or air, but also to state and federal governments because of their “interest independent of and behind the titles of its citizens in all the earth and air within [their] domain.” Tennessee Copper Co., 206 U.S. at 237, 27 S.Ct. at 619, 51 L.Ed.2d at 1044. Amicus AIA assumes, at least for purposes of argument, that environmental contamination may cause “property damage” for which state and federal governments may seek relief. However, it argues that while the governments might be able to recover for the diminution in value of environmental resources, cleanup costs themselves are not recoverable. It bases this argument on the language of section 107 of CERCLA which provides: (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or site selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for— (A) all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; and (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release. 42 U.S.C. § 9607(a)(4). A close reading of this section fails to support AIA’s argument that only an action under the last subsection, section 9607(a)(4)(C), is an action for “property-damage.” It seems clear to us that, although subsection (C) directly provides for recovery for damage to natural resources, subsections (A) and (B) are also measures of the damages which governmental entities may recoup for hazardous waste damage to natural resources. This conclusion is supported by all of the on-point cases cited by the parties or revealed by our independent research. See, e.g., Askew v. American Waterways Operators, 411 U.S. 325, 331, 93 S.Ct. 1590, 1595, 36 L.Ed.2d 280, 286 (1973) (In discussing the Water Quality Improvement Act of 1970, 84 Stat. 91, 33 U.S.C. §§ 1161 et seq. (1972), and a similar Florida Act, the Court stated, “While the Federal Act determines damages measured by the cost to the United States for cleaning up oil spills, the damages specified in the Florida Act relate in part to the cost to the State of Florida in cleaning up the spillage.”); Riehl v. Travelers Ins. Co., 22 Env’t Rep.Cas. (BNA) 1544, 1546 (W.D.Pa. Aug. 7, 1984), rev’d on other grounds, 772 F.2d 19 (3d Cir.1985) (Measure of damages to ground water and streams caused by seepage of wastes from insured’s landfill “is not precisely calculable but includes abatement costs relative to preventing further pollution.”); Port of Portland, 549 F.Supp. at 235 (Cost of cleaning up oil spill is recoverable “property damage” under CGL policy.); Chem. Application Co. v. Home Indem. Co., 425 F.Supp. 777, 778 (D.Mass.1977) (Cleanup and removal expenses incurred by insured measure the “damages” for which indemnification is available.); Waste Management of Carolinas, Inc. v. Peerless Ins. Co., 72 N.C.App. 80, 323 S.E.2d 726, 735 (N.C.App.1984), rev’d on other grounds, 315 N.C. 688, 340 S.E.2d 374 (1986) (Cleanup costs are “essentially compensatory damages for injury to common property,” the ground water of the State of North Carolina.); Kutsher’s Country Club Corp., 465 N.Y.S.2d at 139 (“The cost of cleanup * * * is clearly reflective of the state’s power to establish damages with respect to legislation designed to preserve the sovereign state’s interest in the preservation of natural resources.”); Lansco, Inc. v. Department of Envtl. Protection, 350 A.2d at 525 (Measure of damages for pollution discharge in river is “the cost of eliminating the harmful substance from the waters of the state.”). But cf. Atlantic City Mun. Util. Auth., No. A-1320-94TF (N.J.Super.Ct.App.Div.1985); Linda Walls, No. 2-83-418 (E.D.Tenn. Oct. 11, 1983). Finally, the language of the CGL policies at issue supports the view that cleanup costs are a measure of recoverable damages for injury to environmental resources. The language of the policies specifically require Continental to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * because of property damage.” This language suggests that once there is property damage — here, environmental contamination — then the damages that flow from that property damage— here, cleanup costs — are recoverable. In sum, the cases, the CGL policy language, the common meaning of “property damage,” and section 107 of CERCLA.all support the governments’ argument that cleanup costs under CERCLA are compensatory damages for “property damage” within the meaning of the CGL policies. Accordingly, we adopt this view. The remaining issue is whether the district court erred in holding that the governments did not suffer an “occurrence” of property damage during the policy period because, although the improper waste disposal occurred during the policy period, the cleanup costs were not incurred until long after the policies expired. We hold that it did and adopt the majority view that environmental damage occurs at the moment that hazardous wastes are improperly released into the environment and that a liability policy in effect at the time this damage is caused provides coverage for the subsequently incurred costs of cleaning up the wastes. In Mraz, 616 F.Supp. at 1179, for example, the court rejected the same argument made by the insurer here and held that further fact findings were called for on an allegation that “environmental damage began to take place immediately in 1969 upon dumping at the Leslie site creating the potential for liability within the scope of the 1969 policy.” A similar conclusion has been reached in numerous other cases. See, e.g. Payne, 625 F.Supp. at 1103 (Implicitly finding that improper disposal of hazardous wastes during policy period is an “occurrence” of “property damage” at the time of release into the environment.); Mercury Refining Co. v. Hartford Fire Ins. Co., No. 84-CU-495, (N.D.N.Y. July 19, 1985) (same); Riehl, 22 Envtl.Rep.Cas. (BNA) at 1546, rev’d and remanded on other grounds for further findings, 772 F.2d 19 (3d Cir.1985) (same); Buckeye Union Ins. Co., 477 N.E.2d at 1233 (Insurer during the time period when hazardous wastes were “released” into surrounding soil and groundwater has duty to defend CERCLA cleanup suit under CGL policy.); CPS Chem. Co., 489 A.2d at 1269 (“Time of discovery of the accident does not determine when [damage] took place. The complaint alleges damages commencing with the date of dumpings.”). Quite similar to this line of decisions are cases involving insurance coverage for “progressive diseases” where exposure to a harmful substance occurred during the policy period but the disease or illness developed later after the policy expired. The majority of federal cases on this issue have found coverage by adopting the “exposure,” or the “continuous exposure,” theory of when injury occurs. These decisions rest on the view that exposure to the dangerous substance at issue during the policy period caused immediate, albeit undetectable, physical harm which ultimately led to disease or physical impairment after the expiration of the policy period. For example, in Forty-Eight Insulations, 633 F.2d at 1223, the Court, in finding coverage for a progressive disease which manifested itself after the policy period, stated, “We see nothing in the policy which requires that the underlying cause of action accrue within the policy period. There exists a clear distinction between when bodily injury occurs and when the bodily injury that has occurred becomes compensable.” Accord Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 878 (1981). These cases are distinguishable from cases where a negligent act was committed during the policy period but an accident or injury did not occur until after the policy expired. For example, if one negligently fails to shovel snow off his sidewalk during the policy period, there is no compensable accident until and if someone slips and injures himself during the policy period. This distinction was discussed in Mueller Fuel Oil Co. v. Insurance Co. of North America, 95 N.J.Super. 564, 232 A.2d 168, 175 (N.J.Super.Ct.App.Div.1967), a case involving insurance coverage for a claim of malicious prosecution, where the court wrote: The tort of negligence is not committed unless and until some damage is done. Therefore, the important time factor in determining insurance coverage where the basis of the claim is negligence, is the time when the damage has been suffered. In a claim based on malicious prosecution the damage begins to flow from the very commencement of the tortious conduct — the making of the criminal complaint. The wrong and damage are practically contemporaneous * * . It seems to us that in the case of improper hazardous waste disposal, the wrong and the resulting damage may also be practically contemporaneous. The decision in Kissel v. Aetna Cas. & Sur. Co., 380 S.W.2d 497 (Mo.Ct.App.1964), is particularly relevant on the crucial question of how the Missouri courts would likely rule on the question of when property damage occurs for purposes of insurance coverage. In Kissel, a building contractor hired to build a school employed a subcontractor to dig the foundation and to do landscaping work. During the excavation work in 1952, a series of pressure cracks developed in the ground around the school. The cracks were filled in with dirt and the school construction and landscaping were completed in 1953. The contractor carried a comprehensive general liability policy which covered property damage done by itself and its subcontractors in the course of their construction work. The CGL policy expired in late 1952. In 1957, the cracks reappeared and spread to several pieces of property adjoining the school. Five owners of these pieces of property brought suit, and the construction company instituted suit seeking a declaration that the CGL policy in effect in 1952 covered the damage which occurred in 1957. The insurance carrier argued “that the accident in question occurred in 1957, and not during the policy period, which was November 1951 to November 1952. Under those circumstances, * * it cannot be held responsible for the damages shown in evidence.” 380 S.W.2d at 507. The court rejected this contention, noting that there was not merely an act of negligent excavation during the policy period, but that this negligence also caused immediate property damage during the policy period which, by 1957, after the policy period, spread to adjoining property. “We agree * * * that the accident mentioned in the policy may be a process and the evidence in the instant case is sufficient to show that the process started during the term of the policy and progressed until the filing of the lawsuits. We rule this point against defendant.” Id. at 509. We find that the Kissel case clearly indicates that Missouri would follow the majority view of the courts which have ruled that “property damage,” within the meaning of a CGL policy, generally occurs at the time hazardous wastes are improperly disposed of and that the insurer at that time may be held liable for cleanup costs incurred after the policy expired. Applying these principles, it is clear that the “property damage” proved in the EPA case, 579 F.Supp. at 830, first occurred in July, 1971, during the period of time when the first insurance policy issued by Continental to NEPACCO was in effect. EPA, 579 F.Supp. at 830 (noting that NEPACCO’s agents dumped leaking, deteriorated barrels into the trench at the Denny Farm site and that, upon dumping of the wastes, a “strong odor emitted” and “continued for several months, maybe years.”). Under Kissel, it is also clear that Continental may additionally be liable for the continuing spread of the “property damage” at and around the Denny farm site, which first began in July, 1971. Kissel, 380 S.W.2d at 509. Accordingly, we reverse the district court’s order with respect to Count I of Continental’s complaint and remand for resolution of the remaining issues which must be resolved before it can be determined whether Continental must indemnify NEPACCO for the damages awarded in the EPA suit. It also follows, however, from our holding on the question of the time of the relevant “property damage” “occurrence,” that Continental is not liable to defend or indemnify NEPACCO for liability arising from the IPC suit. The complaint in IPC alleges that in 1971 or 1972, Russell Bliss, pursuant to an agreement with IPC and NEPACCO, transported dioxin-contaminated waste oil from the NEPACCO plant in Verona, Missouri, and spread the contaminated oil on the premises of the Bubbling Springs Stable in Fenton, Missouri. This would be the relevant time of the “property damage” “occurrence” for purposes of cleaning up the Bubbling Springs Stable. However, the IPC complaint does not seek to recover costs for cleaning up the Bubbling Springs Ranch, nor does it seek recovery for the diminution in the value of resources at or around the Bubbling Springs Ranch and its watershed. Instead, the state seeks to recover the costs of cleaning up the Minker/Stout/Romaine Creek site which was contaminated when twenty loads of contaminated fill dirt from the Bubbling Springs Ranch were deposited there in 1974, after the CGL policies had expired. Because the damage at the Minker/Stout/Romaine Creek site first occurred after the last CGL policy’s effective date, we find that it would be beyond the reach of the reasoning in Kissel to hold Continental liable for this damage which began after the policy lapsed. Accordingly, we affirm the district court’s finding on the state’s counterclaim that Continental has no duty to defend or indemnify NEPACCO for potential liability in the pending IPC suit. B. Capstick Claims. The State of Missouri contends that the district court erred in dismissing, without prejudice, Count II of Continental’s complaint which seeks a declaration of no duty to defend or indemnify NEPACCO in the Capstick lawsuit. The Capstick suit differs in several respects from the EPA and IPC suits. The latter involve governmental cleanup cost recoveries under CERCLA; the former involves claims by private individuals for personal and property damage arising out of improper disposal of NEPACCO’s hazardous wastes. We agree with the trial court that resolution of the insurance coverage issues in Capstick requires additional fact finding and analysis, see Independent Petrochemical Corp. v. Aetna Cas. and Sur. Co., Civ. No. 83-3347, (D.D.C., filed Feb. 4, 1986), which may be pursued most effectively in a different proceeding. Accordingly, the district court’s decision granting Continental’s motion to voluntarily dismiss Count II without prejudice is affirmed. . Times Beach was a town of approximately 2,200 people located twenty-five miles southwest of St. Louis. Soil samples taken there by the EPA in the early 1980’s revealed soil dioxin levels in excess of one hundred times the Center for Disease Control’s recommended maximum soil dioxin level for residential areas. In February, 1983, the EPA announced that the government would purchase the entire town of Times Beach using $33.7 million from the federal Superfund. The State of Missouri contributed an additional $3.3 million to the buy-out. . The drafting history and background of the standard-form CGL policy is discussed in American Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485, 1500-03 (S.D.N.Y.1983), aff'd as modified, 748 F.2d 760 (2d Cir.1984). . The latter two policies, covering the period August 5, 1971, to November 17, 1972, contain the following "pollution and contamination” exclusion clause: It is agreed that the insurance does not apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental. The United States Court of Appeals for the First Circuit has held that coverage for damages caused by hazardous wastes improperly disposed of by the plaintiff in the regular course of its business is excluded by the same "pollution exclusion” clause. Great Lakes Container Corp. v. National Union Fire Ins. Co., 121 F.2d 30 (1st Cir.1984); see also Travelers Indemn. Co. v. Dingwell, 414 A.2d 220 (Me.1980). Other courts have reached the opposite conclusion where the hazardous waste discharge was sudden or accidental or the wastes were negligently disposed of by a third-party contractor or were disposed of in full compliance with all applicable rules and regulations, or the wastes were generated other than in the regular course of the insured’s business. See, e.g., Payne v. United States Fid. and Guar. Co., 625 F.Supp. 1189 (S.D.Fla.1985); Technicon Electronics Corp. v. American Home Assurance Co., No. 08811/85 (N.Y.Sup.Ct. Feb. 13, 1986); Buckeye Union Ins. Co. v. Liberty Solvents & Chemicals Co., 17 Ohio App.3d 127, 477 N.E.2d 1227 (Ohio Ct.App.1984); Niagara County v. Utica Mutual Ins. Co., 80 A.D.2d 415, 439 N.Y.S.2d 538 (N.Y.App.Div.), mot. for lv. to app. dism., 54 N.Y.2d 608, 427 N.E.2d 1191, 443 N.Y.S.2d 1030 (1981); Lansco, Inc. v. Department of Envtl. Protection, 138 N.J.Super. 275, 350 A.2d 520 (N.J.Super.Ct.Ch.Div.1975), aff’d, 145 N.J.Super. 433, 368 A.2d 363 (N.J.Super.Ct.App.Div.1976), cert. denied, 73 N.J. 57, 372 A.2d 322 (1977). Whether the "pollution exclusion” clause excludes coverage in this case is not at issue on appeal because the district court found a lack of coverage on other grounds. . All three policies define "property damage" as follows: (1) Physical injury or destruction of tangible property which occurs during the policy period, including the loss of use thereof at anytime resulting therefrom, (2) Loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period * * *. . All three policies define "occurrence” as “an accident, including continuous or repeated exposure to conditions, injury or property damage neither expected nor intended from the standpoint of the insured." Several courts have held that the discharge of hazardous wastes is an "occurrence” within this type of provision where the discharge or the extent of the damage was not expected or intended. See, e.g., Mraz v. American Universal Ins. Co., 616 F.Supp. 1173, 1177-78 (D.Md.1985), 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_typeiss	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Dorothy L. ROCK, Individually and as Administratrix of the Estate of Richard D. Rock, and as the Natural Tutrix of the Minor Children, Stacy Lynn Rock, Sherry Rock Hukins, Herbert J. Rock, and Dorothy Julian Rock, Plaintiff-Appellant, v. HUFFCO GAS & OIL CO., INC. (Huffco Petroleum Corp.), and Dual Drilling Company, Defendants-Appellees. No. 89-3776. United States Court of Appeals, Fifth Circuit. Jan. 31, 1991. Isaac F. Hawkins, III, Robert H. Schmolke, Baton Rouge, La., for plaintiff-appellant. Joel L. Borrello, Adams & Reese, New Orleans, La., for Huffco. Jefferson R. Tillery, Edward J. Koehl, Jr., Jones, Walker, Waeehter, Poitevent, Carrere & Denegre, New Orleans, La., for Dual Drilling. Before CLARK, Chief Judge, THORNBERRY, and HIGGINBOTHAM, Circuit Judges. THORNBERRY, Circuit Judge: An employee for an offshore catering business brought this negligence suit for injuries allegedly suffered during his employment. The employee has died since the instigation of this litigation, and his family members have been substituted as plaintiffs for the purposes of continuing the action. Two of the defendants, Huffco Petroleum Corporation and Dual Drilling Company, filed a motion for summary judgment, which the district court granted. The court ruled that the evidence tendered by the plaintiffs constituted hearsay, which was not admissible under any of the exceptions to the hearsay rule. The plaintiffs appeal the district court’s determination that none of the proffered evidence is admissible and its decision to grant the summary judgment. Finding no error, we AFFIRM. I. FACTS AND PROCEDURAL HISTORY This litigation stems from two accidents allegedly suffered by Richard D. Rock while employed as a steward/cook for Offshore Food Service, Inc. of Houma, Louisiana. Offshore Food Service provides food catering services to offshore drilling platforms and vessels in the Gulf of Mexico. On July 13, 1987, Rock was assigned to work on the Huffco Fixed Platform 206A, which was located in the High Island Region off the coast of Galveston, Texas. On the morning following his arrival, as he was leaving his sleeping quarters, Rock claimed that his foot fell through a rusted part of a step located just outside of his doorway causing him to sprain his ankle. There were no witnesses to the accident, which occurred between 5:00 and 6:00 a.m. as Rock was making his way to the galley to prepare breakfast. Rock reported the incident to the chief supervisor on the platform at the time, Joe Lee Satsky. Satsky asked Rock if he wanted a doctor to examine the ankle, but Rock responded that he did not think the sprain was that bad and that he wanted to stay and work. Satsky did not prepare an accident report form. The ankle continued to bother Rock over the next two days, and when shifts changed and a new chief supervisor came on board the platform, Rock again reported the incident. At this time, the new supervisor, Donald Earl Christian, decided to complete an accident report form. The form was completed in both Rock’s handwriting and Christian’s handwriting. Among the statements written by Christian was a description of the accident. Christian wrote that Rock’s “foot slipped to bad part of porch.” Christian also investigated the site of the accident and confirmed the rusted condition of the step and the existence of a hole and noted that he had not seen the hole during previous inspections. Christian then decided that Rock should consult a physician about the sprain and arranged to have Rock transported by helicopter to St. Mary’s hospital in Galveston, Texas. Doctors reported that Rock had a tender and swollen right ankle and described the injury as a moderate sprain. The ankle was placed in a six inch plaster splint, and Rock was instructed not to put any weight on the ankle, to walk with crutches, and to elevate the ankle when possible. On July 21, 1987, after a few days of rest, Rock returned to work. Rock worked on three different assignments before arriving on a jack-up rig owned by the Dual Drilling Company (Dual Rig No. 41) on August 26, 1987. Within hours of arriving on the drilling rig, Rock claimed to have re-injured his ankle by slipping in some grease on the floor of the rig’s galley. The only potential witness to the accident was Barry Breaux, another Offshore Food’s employee assigned to work with Rock. During his deposition, Breaux reported that he was in the galley at the time of the accident but did not see Rock fall. In fact, Breaux claims that Rock had previously advised him of a plan to fake such an accident. For his cooperation in remaining silent, Rock promised Breaux that he would report back to Offshore Food that Breaux was a “good worker.” Another Offshore Food’s employee, Carl Trahan, was friendly with Rock and corroborated Breaux’s story. Trahan was not on board the Dual 41 when the accident happened, but Trahan claims that Rock later told him that he had a bad ankle and had staged a slip-and-fall accident: “he told me that he was going to keep on walking on it and make sure it stayed swollen so he could get some money out of it.” Record, Yol. 4 at 1134-35. Following the alleged re-injury on the Dual 41, the foreman on board, John Gardner, filed an accident report with information provided to him by Rock. In the space provided for a description of the accident, Gardner wrote that Rock had “stepped in greasey [sic] spot on floor and slipped and twisted right ankle.” Record, Vol. 4 at 1275. Gardner also questioned Breaux about the accident, but Breaux said nothing about the accident being staged. Rock was treated for a sprained ankle on the day following the alleged accident on the Dual 41. Rock continued working on various offshore vessels in the Gulf of Mexico after the alleged incident and eventually obtained a light-duty job in the Offshore Food’s office in Houma, Louisiana. Rock finally quit working for Offshore Food altogether on April 18, 1988. Because of his ankle’s worsening condition, Rock consulted Dr. A. Delmar Walker on September 17th and 27th of 1987. As part of those examinations, Rock provided the doctor with a history of the injury to his ankle including a description of the two incidents discussed above. On October 1, 1987, Dr. Walker referred Rock to a vascular surgeon, Dr. Fritz J. Rau, who again asked Rock for a history of the injury to his ankle. These medical histories are contained in office notes and medical reports. Apparently, as a result of the injury to his ankle, Rock was suffering from a condition known as venous insufficiency. This occurs when the veins in the lower legs fail to return blood to the torso. Several surgeries were performed on Rock in an attempt to restore normal blood flow, but his condition deteriorated. In addition to his vascular condition, Rock developed infections, possibly resulting from the surgical procedures themselves. Rock died from a heart attack on December 12, 1988. Rock initially brought a Jones Act claim on July 13, 1988, naming Huffco, Dual, Offshore Food, and Ogden Allied Leisure Services as defendants. The claim was dismissed, however, because Rock was employed primarily on stationary platforms and not vessels. After Rock’s death, surviving members of his family substituted themselves as plaintiffs and pursued negligence claims against the defendants. Arguing that the plaintiffs produced no evidence to show that Rock had injured himself on their rig, Dual filed a motion for summary judgment on April 25, 1989. Huffco and their insurer, National Union Fire Insurance Company, filed their own motion for summary judgment on June 27, 1989. The district court ordered both parties to tender the actual testimony and documentary evidence, which each intended to use at trial, including the evidentiary basis for admissibility of all such evidence. On October 5, 1989, the court entered judgment in favor of the defendants, and dismissed Rock’s complaint. Specifically, the court concluded that the evidence offered by plaintiffs constituted hearsay, which did not fall within any of the recognized exceptions to the hearsay rule: Hearsay testimony admitted pursuant to the residual hearsay exceptions set forth in Federal Rules of Evidence 803(24) and 804(b)(5) must possess “circumstantial guarantees of trustworthiness” which the statements that Plaintiffs seek to introduce simply do not possess. Additionally, the court rejects Plaintiffs’ contentions that certain statements should be admissible as statements against interest and that certain other statements should be admissible as statements made for the purposes of medical diagnosis or treatment. Rock v. Huffco, No. 88-2998, slip op. at 3 (E.D.La. Oct. 5, 1989). The plaintiffs now appeal the district court’s evidentiary rulings and seek reversal of the court’s order granting summary judgment for the defendants. II. DISCUSSION A. Inadmissibility of Hearsay District courts are given broad discretion in rulings on the admissibility of evidence; we will reverse an evidentiary ruling only when the district court has clearly abused this discretion and “a substantial right of [a] party is affected.” See Muzyka v. Remington Arms Co., Inc., 774 F.2d 1309, 1313 (5th Cir.1985); McNeese v. Reading and Bates Drilling Co., 749 F.2d 270, 275 (5th Cir.1985); Fed.R.Evid. 103(a). Applying this standard, we analyze, in turn, each of the district court’s evidentiary determinations. 1. Statements to Physicians Appellants first suggest that written and testimonial evidence concerning the history of Rock’s alleged accidents, which were given by Rock to the doctors treating his ankle, should be admissible under Federal Rule of Evidence 803(4). This rule provides that otherwise inadmissible hearsay should not be excluded if the statement was initially “made for purposes of medical diagnosis or treatment and describes] medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” Fed.R.Evid. 803(4) (emphasis added). Admissibility of a statement made to one’s physician turns on the guarantee of the absent declarant’s trustworthiness. See Fed.R.Evid. 803(4) advisory committee’s note. Therefore, before admitting such hearsay statements, the court should determine whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought. Details of the injury not necessary for treatment but serving only to suggest fault “would not ordinarily qualify” as an exception to the hearsay rule under Rule 803(4). See id. A case cited by plaintiffs, Ramrattan v. Burger King Corp., 656 F.Supp. 522 (D.Md.1987), illustrates the application of this rule. In Ram-rattan, the district court held that a statement made to a physician that the defendant’s car struck his vehicle was admissible under Rule 803(4), but that “statements concerning who ran the red light or the fault of the parties are not pertinent to diagnosis or treatment.” Id. at 530. The plaintiffs argue that Drs. Walker and Rau considered the cause of Rock’s injury pertinent to their diagnosis, however, deposition transcripts do not bear this out. For instance, Dr. Walker explained that “what caused [Rock] to fall is important from [a legal] standpoint but certainly not from a medical treatment standpoint.” Record Vol. 4, at 1258. Although Dr. Rau was not as explicit, his comments suggest that the history of Rock’s injury was pertinent only to the extent that he was aware that Rock’s foot had, at some point, sustained an injury caused by a trauma to his ankle: Q: [I]s it significant that he fell through a steel plate as opposed to a wooden porch, as opposed to a hole in the log or anything like that? [Rau]: No. I’d have to say no to that. Q: So what you were looking for is that something happened that could explain the condition that he had? [Rau]: That’s correct. Q: And the fact that he fell — he stated he fell through a steel plate really was not — those words and that description was not significant as far as your treatment and diagnosis was concerned? [Rau]: That’s correct, other than it does sort of give you a general idea of what the injury was. Record, Vol. 4 at 1161. The doctors stated that they only needed to know that Rock had twisted his ankle; they did not need to know the additional detail that Rock may have twisted the ankle while stepping through a rusted-out or defective step or by slipping in some grease in order to diagnose or treat Rock’s injury. The plaintiffs cite two additional cases that they claim support the admissibility of Rock’s statements to his physicians. See United States v. Renville, 779 F.2d 430 (8th Cir.1985) and United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). In both cases the Eighth Circuit applied a more liberal interpretation of the Rule 803(4) exception to the hearsay rule; however, both cases dealt with statements made by victims of child abuse to their treating physicians. In Renville, the court explained why statements, which ordinarily may not be admitted under Rule 803(4), may be admitted in a child abuse case: physicians must consider not only the physical harm involved but also the psychological and emotional injuries that accompany the crime of child abuse. See Renville 779 F.2d at 437. Statements of fault may dictate the extent of the psychological injury and suggest the appropriate treatment. See id. Rock’s statements would not qualify under this broader application of the Rule 803(4) exception. For the foregoing reasons, the district court was correct in ruling Rock’s statements to his doctors as inadmissible under Federal Rule of Evidence 803(4). 2. Medical Records as Business Records Plaintiffs next claim that the statements made by Rock to his physicians, which are contained in his medical records, should be admissible under the Business Records exception to the hearsay rule, Rule 803(6). The rule provides that the following records are not excluded by the hearsay rule: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. Defendants correctly point out that plaintiffs have committed a fatal flaw in their analysis. The business records exception to the hearsay rule applies only if the person who makes the statement “is himself acting in the regular course of business.” Florida Canal Industries, Inc. v. Rambo, 537 F.2d 200, 202 (5th Cir.1976). In Rambo, a Coast Guard report containing a statement by a yacht owner as to the causation of a marine accident was offered to prove the truth of the statement. The court held that [ w]hile the report was clearly made in the regular course of Coast Guard business, it was offered to prove the truth of the matters asserted in a hearsay statement made to the Coast Guard by a person not acting in the regular course of his business. Consequently, it was appropriately excluded by the district court. Rambo, 537 F.2d at 203. The justification for the business records exception rests on the assumption that business records are reliable because they are created on a day-to-day basis and “[t]he very regularity and continuity of the records are calculated to train the record-keeper in habits of precision.” McCormick on Evidence § 306 at 872 (3rd ed. 1984). This assumption of reliability, accuracy and trustworthiness, however, collapses when “any person in the process is not acting in the regular course of the business.” Id. § 310 at 879. Since Rock was not acting in the usual course of his business, the district court was correct in finding the medical records inadmissible under the business records exception to the hearsay rule. 3. Accident Reports and Logs The plaintiffs next claim that a variety of reports and logs documenting Rock’s alleged injuries are admissible to explain the circumstances of each of the alleged accidents. These writings consist of the following documents: 1) Christian’s accident report for Huffco, 2) Gardner’s accident report for Dual, 3) the ship’s log on the Dual rig, 4) an accident report filed by Rock for Offshore Food (regarding the Dual accident), 5) a notice from Offshore Food to its insurer (regarding the Dual accident), and 6) a drilling report form (regarding the Dual accident). The plaintiffs first argue that the information contained in these reports is admissible under various Rule 803 hearsay exceptions. Second, the plaintiffs argue that certain statements found in the documents represent admissions by a party-opponent under Rule 801(d)(2) and, therefore, cannot be restricted by the hearsay rule. Each of these arguments is considered below. a. The Rule 803 Exceptions The plaintiffs begin by arguing that since these documents were filed in the normal course of business, they should qualify under the business records exception to the hearsay rule, Federal Rule of Evidence 803(6). As explained above in section (2), each participant in the making of the record must be acting in his normal course of business before the record becomes admissible under the Rule 803(6) exception. See Rambo, 537 F.2d at 203; McCormick on Evidence, supra, at 872. Since filing accident reports was not an integral part of Rock’s usual course of business, it was within the district court’s discretion to hold the documents as inadmissible under Rule 803(6). See McCormick on Evidence, supra, § 308 at 876-77 and n. 25 (distinguishing between accident report forms and records kept in the regular course of business). The plaintiffs next argue that Rock’s statements to Christian, describing his pain and difficulty in walking, would be admissible under Rule 803(3) as statements evidencing Rock’s state of mind at the time the statements were made. “However, it is clear that before a statement, otherwise hearsay, can be admitted under 803(3) to show the declarant’s then existing state of mind, the declarant’s state of mind must be a relevant issue in the case.” Prather v. Prather, 650 F.2d 88, 90 (5th Cir. Unit A July 1981). Since Rock’s state of mind is not at issue in this case, the statement may not be admitted under this exception. Plaintiffs next argue that the accident reports may be admissible as recorded recollections under Rule 803(5). This rule allows the introduction of documents, in lieu of live testimony, “concerning a matter about which a witness once had knowledge but now has insufficient recollection.” Plaintiffs reason that the reports would be admissible under the rule should Gardner or Christian (makers of the accident reports) fail to remember each of the facts conveyed to them by Rock when they completed the reports. This exception to the hearsay rule, however, applies only to potential witnesses who, at one time, had firsthand knowledge of the facts that are sought to be admitted. See, e.g., Fed.R. Evid. 803 advisory committee’s note (“In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge.”); Fed.R.Evid. 602 advisory committee’s note (witness may not testify “to subject matter of [a] hearsay statement, as he has no personal knowledge of it.”); Elizarraras v. Bank of El Paso, 631 F.2d 366, 373-74 (5th Cir.1980) (applying Fed.R.Evid. 602). The recordation of Rock’s statement by Gardner and Christian are classic examples of hearsay within hearsay. To be admissible, both levels of hearsay must come within exceptions to the hearsay rule. See Fed.R.Evid. 805; Weinstein’s Evidence, § 803(5)[01] at 803-162 to 163 (1988). Rock’s statements cannot fit within the framework of the hearsay exceptions. Evidence of Rock’s motive to fabricate such statements creates too great a risk of inaccuracy or untrustworthiness to provide the circumstantial guarantees of trustworthiness contemplated by the hearsay exceptions. See Fed.R.Evid. 803 advisory committee notes. The district court committed no error in ruling the reports inadmissible under Rule 803(5). Plaintiffs next argue that Rock’s statements, as recorded by Christian and Gardner, should be admissible under Federal Rule of Evidence 803(1) as present sense impressions. Rule 803(1) provides that hearsay statements “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter” should be admissible regardless of the availability of the declarant. The justification for this hearsay exception relies on the contempo-raneousness of the event under consideration and the statement describing that event. Because the two occur almost simultaneously, there is almost no “likelihood of [a] deliberate or conscious misrepresentation.” Fed.R.Evid. 803(1) advisory committee’s note; see also United States v. Peacock, 654 F.2d 339, 350 (5th Cir. Aug. 1981), modified on other grounds, 686 F.2d 356 (5th Cir. Unit B 1982) (statement, otherwise hearsay, admitted under Rule 803(1), because “[tjhere was no time for [declarant] to consciously manipulate the truth”). The accident reports filed by Christian and Gardner do not fit within the limits established by Rule 803(1). Christian’s report, for instance, was not filed immediately following Rock’s alleged accident, but only after two days had passed. Rock also had time to “consciously manipulate the truth” prior to providing Gardner with information included in the second report; indeed, there is evidence to suggest that Rock never had such an accident but that he staged such an event for personal gain. The court did not abuse its discretion in finding this evidence inadmissible under Rule 803(1). The overarching theory for the Rule 803 exceptions is that, under certain circumstances, a statement, although it is hearsay, may still possess circumstantial guarantees of trustworthiness sufficient to justify its admission as evidence. See Fed. R.Evid. 803 advisory committee notes. The district court committed no abuse of discretion in determining that the accident reports and logs did not provide the “circumstantial guarantees of trustworthiness” contemplated by this rule. The plaintiffs argue that in reaching such a conclusion the district court made an improper inquiry into Rock’s credibility. However, the plaintiffs have misconstrued the district court’s order. The court stated only that the proffered evidence did not meet the circumstantial guarantee of trustworthiness on which each of the exceptions is founded; the court made no determination as to the extent of evidence indicating that Rock, himself, was untrustworthy. The district court committed no error in finding these documents inadmissible under the Rule 803 hearsay exceptions. b. Rule 801(d)(2) — Admission By Party-Opponent The plaintiffs next claim that the accident reports filed by the defendants are not hearsay, because they represent admissions by party-opponents. Rule 801(d)(2) notes that a statement is not hearsay if “[t]he statement is offered against a party and is ... (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” The plaintiffs argue that certain portions of the accident reports cannot be considered hearsay, because they represent admissions by employees of the defendants, and the admissions were made while the employees were acting within the scope of their employment. As an example, plaintiffs cite to the comment written by Huffco’s chief supervisor, Christian, that Rock’s “foot slipped to bad part of porch.” Similar statements concerning the cause of the alleged accidents are included in Gardner’s accident report for Dual, as well as other reports whose information was derived from these two accident reports. The statements to which the plaintiffs have directed our attention cannot be properly characterized as admissions. It is obvious from the depositions of Christian and Gardner that they were simply documenting Rock’s account of the alleged accidents. Nothing in the accident reports, themselves, indicates that the defendants adopted the version of the facts as reported by Rock. The district court was correct in finding the accident reports inadmissible under Rule 801(d)(2). 4. Statements to Family Members The plaintiffs next claim that statements made by Rock to his family concerning the circumstances of his alleged accidents should be admissible under the residual hearsay exceptions, Rules 803(24) and 804(b)(5). The text of both rules is identical; they would provide for the admissibility of [ a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. The district court held that the circumstances of the alleged accidents, as reported by Rock to his family, lacked the “circumstantial guarantees of trustworthiness” contemplated by these two rules. Since the language and purpose of the residual hearsay exceptions are identical, a discussion concerning one of the exceptions is just as applicable to the other. See J. Moore 11 Moore’s Federal Practice § 803(24)[7] (2d ed. 1989). We apply a highly deferential standard of review in evaluating the district court’s determination on this issue. We will not reverse the district court’s finding “absent a definite and firm conviction that the court made a clear error of judgment in the conclusion it reached based upon a weighing of the relevant factors.” Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir.1982); see also Nowell v. Universal Elec. Co., 792 F.2d 1310, 1315 (5th Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 578, 93 L.Ed.2d 581 (1986) (noting that “the residual exception must be used sparingly,” and recognizing “that a district court has considerable discretion in applying [it]”). Plaintiffs argue that our opinion in Nowell supports their argument for admissibility of Rock’s statements to members of his family. Although we affirmed a district court’s determination to allow the admission of such evidence in Nowell, we did so by relying on the “clear error of judgment standard” enunciated in Page, 673 F.2d at 140. In reaching that conclusion, we quoted the following passage from Page: In our opinion it would have been a more precise application of Rule 803(24), and would have best served the interests of justice, Rule 803(24)(C), to exclude the offered statement. However, our standard of review requires more than a judgment that we would have ruled differently and so we decline to hold that the statement’s admission was reversible error. Nowell, 792 F.2d at 1315 (quoting Page, 673 F.2d at 140). Our holding in Nowell did not provide that statements made to family members, in situations similar to Rock’s, should always be admissible under the residual hearsay exceptions. On the contrary, we held that the exception must be used sparingly in such cases and that the district court’s determination regarding that issue (whatever the outcome) must be given much deference on review. See 792 F.2d at 1315. Plaintiffs’ reliance on No-well is further undermined by our statement in Nowell that the district court would be free on remand to reconsider its determination with respect to the admissibility of the statements should the issue recur at retrial. See id. The plaintiffs are seeking to admit hearsay testimony by family members of a deceased man concerning statements made prior to his death in order to establish the cause of his injury. Such statements are inherently unreliable. The arguments advanced by plaintiffs for admissibility of these statements fail to leave us with “a definite and firm conviction that the [district] court made a clear error of judgment in weighing the relevant factors.” Id. (citing Page, 673 F.2d at 140). Other cases cited by plaintiffs can be distinguished. For the foregoing reasons, we affirm the district court’s ruling that the statements made to family members would be inadmissible. 5. Insurance Adjuster’s Statement Finally, plaintiffs claim that a written statement taken from Rock by James Van-derlick, an insurance claims agent, acting on behalf of Dual Drilling Company, should be admitted either under Rule 804(b)(3) as a statement against Rock’s own interest, or under the residual exceptions, Rules 803(24) and 804(b)(5). Although the statement is not notarized, it resembles an affidavit in its form. a. Statement Against Interest In the course of answering questions posed by Vanderlick, the plaintiffs argue that Rock made certain statements that were against his pecuniary interest. The one example cited by the plaintiffs is Rock’s admission that he was still able to work despite his injury. Even if the plaintiffs were to prevail on this argument, they would only succeed in admitting those parts of the written statement that are contrary to their case. This exception would admit no evidence which could withstand the defendants’ motion for summary judgment. Plaintiffs alternatively argue that such an admission would “buttress the trustworthiness” of the entire statement that Rock provided Vanderlick. A patchwork of admissions, however, cannot provide the circumstantial guarantees of trustworthiness necessary to admit the complete statement. The statement itself must be made under such circumstances as to provide the court with a high degree of eonfi-dence that the statement is free from the risk of inaccuracy and untrustworthiness and that an opportunity for cross-examination would be superfluous. See 5 Wigmore on Evidence § 1420 (J. Chadbourn rev. 1974). Rock most likely realized that the statement would be used in any forthcoming litigation, and evidence suggests that Rock had a motive to fabricate such a statement; these facts would create a risk of untrustworthiness that would undercut any security we might be able to wring from admissions found within the statement. b. Residual Exception All the reasons militating against reversal of the district court’s determinations discussed above in sections (4) and (5)(a) apply with equal force here. Rock’s self-serving statement simply cannot provide the “circumstantial guarantees of trustworthiness” required by the residual hearsay exceptions. The plaintiffs urge us to apply various eases, which they argue have admitted similar statements under the residual hearsay exceptions. Each of these cases can be distinguished from the case before us. Given the standard this court must adhere to in reviewing the evidentiary findings of the district court, the exclusion of Rock’s statement to Vanderlick should be affirmed. B. Summary Judgment This court applies a de novo standard in reviewing a district court’s decision to grant summary judgment. See Amoco Prod. Co. v. Lujan, 877 F.2d 1243, 1248 (5th Cir.), cert. denied, - U.S. -, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989). To avoid summary judgment, the plaintiffs must produce admissible evidence that will create a factual issue concerning the existence of every essential component of their case. See In re Lewisville Properties, 849 F.2d 946, 950 (5th Cir.1988). The plaintiffs have failed to meet this test. Every item of material evidence proffered by plaintiffs has been excluded by the rule against hearsay. The remaining evidence consists primarily of Christian’s observation that Rock had a swollen ankle, and evidence showing the physical condition of the rigs during the time of the alleged accidents. On such sparse evidence, the district court properly granted defendants’ motions for summary judgment. Cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1987) (“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient [to defeat summary judgment].”). AFFIRMED. . See Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir.1979) (the admitted statements were contrary to decedent’s pecuniary interest and decedent had no reason to invent the facts described); Elmer v. Tenneco Resins, Inc., 698 F.Supp. 535, 545 & n. 6 (D.Del.1988) (decedent's statements were “likely to be admissible under a combination of [Federal Rules] 803(6) and 803(4)” but final evidentiary ruling was deferred). . See United States v. Cree, 778 F.2d 474 (8th Cir.1985) (liberal construction allowed for young victims of child abuse); Herdman v. Smith, 707 F.2d 839, 842 (5th Cir.1983) (statements admitted were those of a witness who risked criminal sanctions in coming forward with information); Robinson v. Shapiro, 646 F.2d 734, 743 (2d Cir.1981) (statement made prior to accident and no motive to fabricate statement); United States v. Johnson, 529 F.2d 581, 584 (8th Cir.), cert. denied, 426 U.S. 909, 96 S.Ct. 2233, 48 L.Ed.2d 835 (1976) (statement was not hearsay, but an admission by a party-opponent); Corrigan v. United States, 609 F.Supp. 720, 727 n. 3 (E.D.Va.1985), reversed on other grounds, 815 F.2d 954 (4th Cir.), cert. denied, 484 U.S. 926, 108 S.Ct. 290, 98 L.Ed.2d 250 (1987) (statement was not hearsay, but an admission by a party-opponent); Turbyfill v. International Harvester Co., 486 F.Supp. 232, 234 (E.D.Mich.1980) (independent circumstantial guarantees of trustworthiness were provided). Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_circuit	H	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. SECURITIES & EXCHANGE COMMISSION v. RALSTON PURINA CO. No. 14611. United States Court of Appeals Eighth Circuit. Nov. 21, 1952. Writ of Certiorari Granted March 9,1953. See 73 S.Ct. 643. David Ferber, Special Counsel, Securities and Exchange Commission, Washington, D. C. (Roger S. Foster, Gen. Counsel, Robert L. Randall, Atty., Securities and Exchange Commission, Washington, D. C, Alexander J. Brown, Jr., and Robert J. Su-grue, Attys., and Thomas B. Hart, Regional Acten’r, Securities and Exchange Commission, Chicago, 111., were with him on the brief), for appellant. Thomas S. McPbeeters, St. Louis, Mo. (George W. Simpkins and Bryan, Cave, McPheeters & McRoberts, St. Louis, Mo., were with him on the brief) for appellee. Before SANBORN, WOODROUGH, and COLLET, Circuit Judges. SANBORN, Circuit Judge. The Securities and Exchange Commission has appealed from a judgment dismissing an action brought by it in October, 1951, under Section 22(a) of the Securities Act of 1933, 48 Stat. 86, 15 U.S.C.A. § 77v (a), against the Ralston Purina Company, to enjoin it from using the mails or the instruments of interstate commerce in selling or offering to sell its common stock. In its complaint the Commission alleged that the Company was engaged and was about to engage in acts or practices violative of Section 5(a) of the Act, 48 Stat. 77, 15 U.S.C.A. § 77e(a) ; that since the fall of 1947 the Company has been selling its 'common stock, and in the sale of the stock has been using the mails and instruments of interstate commerce, and that no registration statement with respect to the stock has been in effect with the Commission. The Company denied that it was engag-' ing or was about to engage in acts and practices violative of Section 5(a) of the Act. It denied that it had sold or offered for sale its common stock except in limited quantities to carefully selected key employees pursuant to a long-established custom of the Company to encourage such employees to become owners of stock. The Company stated that it was of the opinion that what it had done in making its unregistered common stock available to key employees did not constitute a public offering and was not violative- of Section 5(a) of the Act; but that no sales of its stock offered in 1951 had been consummated pending a determination of its right to sell such unregistered stock to the key employees who had applied for it. The Company ad.-mitted using the mails or instruments of interstate commerce in offering its key employees an opportunity to purchase common stock. The sole issue at the trial of the case in the District Court, and the sole question here, is whether the Company can follow its policy of making available each year for purchase a limited amount of its common stock to a select group of employees regarded as key employees, without registering the stock with the Commission. The question turns upon the interpretation and scope of Section 4(1) of the Act as amended, 48 Stat. 77, 48 Stat. 906, IS U.S.C.A. § 77d(l), which exempts from the-provisions of Section 5(a) “transactions by-an issuer not involving any public offering”.. The District Court concluded that what the-Company had done in selling and offering-' to sell common stock to key employees involved a private and not a public offering-of stock, and that, by virtue of Section 4(1) of the Act, the Company was not required: to register its common stock with the Commission, D.C., 102 F.Supp. 964. This conclusion the Commission asserts is clearly wrong. Since Congress has furnished no-precise standards for determining what constitutes a “public offering” of a security, it-seems apparent that every case in which the question as to whether an offering is. public or private arises will have to be decided largely upon the precise facts and dr-cumstances surrounding the offering. The evidence in the instant case is virtually undisputed, although the Commission questions the validity of certain inferences drawn by the District Court. It must be remembered, however, that the Company as the prevailing party is entitled to the benefit of all inferences which reasonably can be drawn in its favor. Clco Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 418, 150 A.L.R. 1056; Skelly Oil Co. v. Holloway, 8 Cir., 171 F.2d 670, 674. The factual situation with which we are confronted is briefly as follows: The Company was organized in 1894. It manufactures feeds and cereals. It has grown until in 1951 it was operating 36 feed mills, 6 soy bean processing plants, 3 cereal mills, many warehouses and elevators, and 7,000 retail outlets. It has about 7,000 employees. The net sales of the Company’s products in the fiscal year ending September 30, 1951, were in excess of $340,000,000. Its branches are scattered throughout the United States. It does a nation-wide -business. The most rapid growth of the Company has taken place since 1940. The Company has had continuity of management. Its founder is still active in its management. Most of its officers have spent their entire business lives in its employ. Its policy has been to promote its personnel from within the organization. From the inception of the Company it has ■encouraged stock ownership by employees, particularly by key employees, and has from time to time made stock available to •such employees. It sold stock to employees .as early as 1911. About 80% of the Company’s common stock is owned or controlled by employees, members of employees’ families, or former employees, about 1,000 to 1,500 employees being stockholders. The Company has never sold any of its common stock to the public nor for the purpose of raising money. Sales of stock by the Company to employees have been limited exclusively to key employees. In 1942 the Company sold 1,269 shares of common stock to 59 key employees, and in 1943 it sold 2,000 shares to 109 such employees. Thereafter for several years it sold none of its stock to key employees because most of them were stockholders; but, with the expansion of its business, it again offered them stock in 1947. In that year, as of October 1, the Company sold 6,984 shares to 243 key employees (of whom 187 were already stockholders) at $47.50 a share. In 1948, as of September 30, the Company sold 1,120 shares to 20 key employees (of whom 18 were already stockholders) at $50 a share. In 1949, as of October 3, it sold 10,000 shares to 414 key employees (of whom 267 already owned stock) at $55 a share. In 1950, .as of September 22, the Company sold 9,659 shares to 411 key employees (300 of whom already were stockholders) at $70 a share. In September, 1951, the Company made 10,000 shares available for purchase by key employees at $80 a share. Of these employees, 167 applied for 3,769 shares of stock. Of the 167, 139 were stockholders. No stock has been sold to the applicants, due to this litigation. The Company’s definition of a key employee is as follows: “A key employee of course can be an officer or a department head or an assistant to a department head but is not confined to an organization chart. It would include an individual who is eligible for promotion, an individual who especially influences others or who advises others, a person whom the employees look to in some special way, an individual, of course, who carries some special responsibility, who is sympathetic to management and who is ambitious and who the management feels is likely to be promoted to a greater responsibility.” Key employees are selected by the “top management” of the Company, after consulting with the men who manage the mills and have supervision over and direct contact with a substantial number of em-' ployees. The reasons of the management for selling stock to key employees were stated to be as follows: “We feel, sir, that that creates a greater efficiency with the company, because it draws employees of the company closer together. Many of our people come from the rural area, where proprietorship is a matter of great pride to them. The fact that they feel that they are owners, at least part owners, in the company, contributes to the morale, and we feel that the idea of breaking down the gap between the ownership and management is something that is highly desirable and something that contributed substantially to the success of the company.” Notification that stock was available to key employees came to them through the managers under whom they worked. The managers were told not to solicit orders for stock, but “simply to acquaint the people who had indicated an interest or whom they felt it was fair to notify of the situation.” During the past several years the Company has on September 30, the end of its fiscal year, paid bonuses to key employees. These have been substantially the same persons to whom stock was sold during these years. Many of them have wanted to invest their bonus money in the common stock of the Company. The common stock is an unlisted stock and there is only a limited over-the-counter market ' for it. Any substantial amount of competitive bidding might raise the market price artificially. That is one of the reasons why the Company attempted-to make common stock available to the employees to whom bonuses were paid. Since. 1945 the Company has published a regular annual financial statement, which has been sent to all of its stockholders, furnished to banks and brokers more or less generally, and filed with the Securities and Exchange Commission, with which the Company’s preferred stock was registered in 1945. Bi-monthly sales and production .records are sent out to all the key people of the Company, and are available to any employee. The selection of key personnel to whom bonuses are paid and to whom stock is made available is not dependent upon payroll classification or the importance of the positions held. Stock has been purchased by those holding positions as trainees, clerks, and stenographers, as well as by those who are executives and managers. Those who have purchased stock from the Company have done so for purposes of investment. Resales of stock purchased by key employees have been negligible, — 317 shares in 1947, none in 1948, 89 in 1949, and 45 in 1950. Of those employees who sold their stock, most had left the Company’s employ. The Company’s estimate of the number of key employees to whom common stock was offered in 1951 was about 500. Since the evidence showed that stock was made available to substantially the same persons who received bonuses, and since in 1951 $1,575,000 was paid out in bonuses to- 674 employees, it seems probable that the estimate of the Company was low. However, approximately 75% of the key employees to whom bonuses were paid, and to whom stock was offered, during the years 1947 to 1950, inclusive, were already stockholders of the Company. Presumably, they were advised of its financial condition through its annual reports. The other 25% might reasonably be believed to have* some knowledge of the Company’s progress from sales and production records. More than 80% of the employees who applied for stock in 1951 were already stockholders of the Company. Lewis Stuart, a Vice-President, Secretary, and a Director of the Company, who testified in its behalf, said, in response to the question as to why the Company did not register the stock offered to employees in 1951: “The reasons are very definite. Personally, I have been through a registration just once, and when we started to register our preferred stock, we started in January. It took until May 15th before we could get the schedules. It cost us tens of thousands of dollars. Now, when you are putting out an issue, or when you are selling to a group, to a small intimate group, if the sale is between three or four or t.en thousand shares and you have to spend for a hundred special accountants’ fees, lawyers’ fees, printing expenses, travel .expenses, clerical expenses — there is a host of expenses in connection with the registration which makes it entirely unwarranted to spend that much money to accommodate key employees. The big factor is a very important factor. We come to the end of the year; we cannot wait 3y2 months to know what we are going to do; we have to deal with our employees, pay our bonuses, and make our deals then. If we have to wait for 3% months, or if we have to wait for 2% months, which probably would be a pretty fair length of time, and then pay financial extras, legal people, accounting people, printing, long distance telephone and telephone calls, clerical expenses, travel, and pile all that expense on the sale of a few shares of stock to an intimate group, we feel that that is entirely unwarranted, and it is a matter of economy on our part * * The Company had the burden of proving that its offering of stock to its key employees came within the exemption provided by Section 4(1) of the Act, which, being an exception to the general policy of the Act, is to be strictly construed and may not receive such a broad construction as would be destructive of the plain purpose which caused the Act to be adopted. Spokane & Inland Empire Railroad Co. v. United States, 241 U.S. 344, 350, 36 S.Ct. 668, 60 L.Ed. 1037; Securities and Exchange Commission v. Sunbeam Gold Mines Co., 9 Cir., 95 F.2d 699, 701. The purpose of the Act is to prevent, SO' far as possible, frauds in the sale of securities by requiring that investors be furnished with adequate information relative to securities offered to them. In Securities and Exchange Commission v. Chinese Consolidated Benevolent Association, Inc., 2 Cir., 120 F.2d 738, 740, the court said: “But the aim of the Securities Act is to have information available for investors. This objective will be defeated if buying orders can be solicited which result in uninformed and improvident purchases.” The rule requiring the strict construction of statutory language does not require that the words of an enactment be given their narrowest meaning or that the law makers’ evident intent be disregarded. United States v. Corbett, 215 U.S. 233, 242-243, 30 S.Ct. 81, 54 L.Ed. 173; United States v. Giles, 300 U.S. 41, 48, 57 S.Ct. 340, 81 L.Ed. 493. In determining whether the Act requires that securities be registered, the honesty of the issuer, the soundness of the securities offered, or the delay and expense which may be involved in securing their registration, are not of material consequence. The problem presented by this case is somewhat reminiscent of that considered by the Supreme Court in Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212, in which the Court was required to determine whether certain expenditures made by a taxpayer were “ordinary and necessary expenses”. In that case, Mr. Justice Cardozo said, pages 114-115 of 290 U.S., page 9 of 54 S.Ct.: “Here, indeed, as so' often in other branches of the law, the decisive distinctions are those of degree and not of kind. One struggles in vain for any verbal formula that will supply a ready touchstone. The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.” It would, of course, be unreasonable to suppose that Congress, in exempting from the provisions of Section 5(a) of the Act “transactions by an issuer not involving any public offering”, intended that an offering not open to everyone was exempt. It would be equally unreasonable to rule that the language of Section 4(1) of the Act did not mean what it purported to mean or that no offering was exempt which the Commission might regard as a public offering. The Commission is of the opinion that the exemption provided by Section 4(1), when read in the light of its legislative history, of the construction placed upon it by the Circuit Court of Appeals of the Ninth Circuit in Securities and Exchange Commission v. Sunbeam Gold Mines Co., 9 Cir., 95 F.2d 699, and of the Commission’s own administrative interpretation of the section, does not exempt offerings such as those in suit. The legislative history upon which the Commission relies is that referred to by the Circuit Court of Appeals of the Ninth Circuit in the Sunbeam Gold Mines Co-, case, supra, in which it was held that an offering of securities by that company to its 323 stockholders and to 207 stockholders of another company to raise money to effect a mei'ger of the two companies was a public offering and was therefore not exempt from registration. In that case the court said on pages 701-702 of 95 F.2d: “The bill as originally passed by the House, following the recommendation of the Committee on Interstate and Foreign Commerce, exempted from registration requirements the issuance of additional capital stock of the issuer among its own stockholders exclusively, where no commission or other remuneration was paid or given in connection with the sale or distribution, H.R. 5480, 73d Cong., 1st Sess., Sec. 4 (3). This original House draft also exempted ‘transactions by an issuer not with or through an underwriter and not involving any public offering. * * ’ Section 4(1). In reporting to the House, the Commerce Committee said of this exemption: ‘Paragraph (1) broadly draws the line between distribution of securities and trading in securities, indicating that the act is, in the main, concerned with the problem -of distribution as distinguished from trading. It therefore exempts all transactions except by an issuer, underwriter, or dealer. Again, it exempts transactions by an issuer unless made by or through an underwriter so as to permit an issuer to make a specific or isolated sale of its securities to a particular person, but insisting that if a sale -of the issuer’s securities should be made generally to the public that that transaction shall come within the purview of the act.’ (Italics supplied.) H.R.Rep. No. 85, 73d Cong., 1st Sess. p. 15. “Thus on the first draft of the measure it is clear that neither the Committee nor the House considered the test of ‘public offering’ to be the inclusion or noninclusion of nonstockhold-ers of the issuer in the group to whom the security was to be issued. “When the Senate received the measure, it eliminated the exemption contained in section 4(3), supra (including an exemption of stock dividends). The bill then went to conference, where the Senate’s elimination of this exemption was approved by the Managers on the Part of the House, who stated, H.R. Rep. No. 152, 73d Cong., 1st Sess. p. 25 : ‘The House provision (Section 4(3)) exempting stock dividends and the sale of stock to stockholders is omitted from the substitute since stock dividends are exempt without express provision as they do not constitute a sale, not being' given for value. Sales of stock to stockholders become subject to the act unless the stockholders are so small in-number that the sale to them does not constitute a public offering(Italics supplied.) . “Again, in 1934, when the Securities Act was amended, 15 U.S.C.A. § 77b et seq. and notes, a proposal to exempt from registration securities offered by an issuer to its employees was rejected by the Committee of Conference of the two House's. In this connection, the Managers on the Part of the House stated: ‘The conferees eliminated the third proposed-amendment to this subsection on the ground that the participants in employees’ stock-investment plans may be .in as great need of the protection afforded by availability of information concerning the issuer for which they work as are most other members of the public.’ H.R.Rep. No.. 1838, 73d Cong., 2d Sess., p. 41. “These Reports clearly demonstrate that the Congress did not intend the term ‘public offering’ to mean an offering to any and all members of the public who cared to avail themselves of the offer, and that an offering to stockholders, other than a very small number,, was a public offering.” The District Court, in the instant case, in considering the legislative history of Section 4(1) of the Act quoted the colloquy between Senator Fletcher, a member of the Committee of Conference which considered the proposed amendment offered in 1934 to exempt the sale of stock by an issuer to its employees, and Senator Hastings who had submitted the amendment, see page 967 of 102 F.Supp. Senator Fletcher, in substance, advised the Senate that the proposed amendment was rejected because a majority of the members of the conference committee were of the opinion that Section 4 (1) of the Act already exempted an offer of stock by an employer to- its employees. If Congress had intended that the exemption provided by Section 4(1) of the Act was to apply only to specific or isolated sales or offerings of securities by an issuer to a particular person or to a numerically small group, it is reasonable to believe that it would have said so, and would not have left the scope of the exemption to inferences to be drawn from committee reports or the rejection of a proposed amendment offered at a subsequent session of Congress. The Supreme Court has said: “Whatever was said in the debates on the bill or in the reports concerning it, preceding its enactment or during its enactment, must give way to its language, or, rather, all the reasons that induced its enactment and all of its purposes must be supposed to be satisfied and expressed by its words, * Mackenzie v. Hare, 239 U.S. 299, 308, 36 S.Ct. 106, 107, 60 L.Ed. 297. See, also, Warner v. Dworsky, 8 Cir., 194 F.2d 277, 279, certiorari denied 343 U.S. 965, 72 S.Ct. 1060; Missouri Pac. R. Co. 5J4% Secured Serial Bondholders’ Committee v. Thompson, 8 Cir., 194 F.2d 799, 803-804. It is fair to assume that the words used by Congress in expressing its intent more nearly reflect that intent than would any other words which were readily available. Assuming, however, that recourse properly may be had to the legislative history of Section 4(1) of the Act, we agree with the District Court that there is nothing in that history which demonstrates that the offerings in suit do not fall within the exemption provided by that Section. We do not regard the decision of the District 'Court in the instant case as inconsistent with the opinion of the Ninth Circuit in the Sunbeam Gold Mines Co. case, the correctness of which as applied to the facts of that case we do not doubt. There are obvious distinctions between an offering of securities to all of the stockholders of two companies, parties to- a proposed merger, to raise funds to effectuate the merger, and an offering, without solicitation, of common stock to a selected group of key employees of the issuer, most of whom are already stockholders when the offering is made, with the sole purpose of enabling them to secure a proprietary interest in the company or to increase the interest already held by them. The administrative interpretation of Section 4(1) of the Act, referred to by the Commission, is reflected by an opinion of John J. Burns, its General Counsel, in 1934, which is found in 11 Fed.Reg. (1946), § 231.285, page 10,952, and which, for convenience, we have set out in the margin. This opinion discusses the factors to be whether an offering is public or private, considered in attempting to determine These factors are stated to be: (1) the number of offerees and their relationship to each other and to the issuer; (2) the number of units offered; (3) the size of the offering; and (4) the manner of offering. It is evident that the Commission considers that the offerings in the instant case were made to too many employees and involved too many shares of stock to be nonpublic offerings, and that if Section 4(1) of the Act is construed to exempt such offerings the remedial purposes of the Act may be impaired. We sympathize with the efforts of the Commission to restrict the exemption granted by Section 4(1) to the narrowest possible scope, but we do not think that the intra-organizational offerings of stock by the Company, unaccompanied by any solicitation, which have resulted in a limited distribution of stock, for investment purposes, to a select group of employees considered by the management to be worthy of retention and probable future promotion, is to be excluded from the exemption of nonpublic offerings granted by Congress. There is, we think, virtually no possibility that these offerings, if continued, will frustrate or impair the purpose of the Act. The judgment of a trial court will not be reversed by this Court unless it can demonstrate, at least to its own satisfaction, that the judgment is wrong. That we are unable to do in this case. Our opinion is strictly confined to the precise facts here involved, and is not to be taken as a ruling that employees’ stock investment plans are generally within the exemption granted by Section 4(1). If the offerings with which we are concerned were made to all employees or to employees selected at random or by lot or without any logical basis for the selection, a different question would be presented. The judgment appealed from is affirmed. , “Prohibitions relating to interstate commerce and the mails “Sec. 5. (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person,.directly or indirectly— “(1) to make use of any means or instruments, of transportation or commu-' nication in interstate commerce or of the mails to sell or offer to buy such security through the use or medium of any prospectus-or otherwise; or “(2) to carry , or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any su’ch security for the purpose -of,, sale- or' for delivery after-sale.” . “The opinion has been previously expressed by this office that an offering of ■securities to an insubstantial number of persons is a transaction by the issuer not involving any public offering, and hence an exempted transaction under the provisions of Section 4 (1) of the Securities Act. Furthermore, the opinion has been expressed that under ordinary circumstances an offering to not more than approximately twenty-five persons is not an offering to a substantial number and presumably does not involve a public offering. “As a result of such opinions there appears- to be developing a general practice on the part of issuers desiring to avoid registration of their securities to seek to dispose of the same to insurance companies or other institutions, which, at the time of purchase, state that they are acquiring such securities for investment and not with a view to distribution. “I would call your attention to the fact that in previous opinions it has been expressly recognized that the determination of what constitutes a public offering is essentially a question of fact, in which all surrounding circumstances are of moment. In no sense is the question to be determined exclusively by the number of prospective offerees. I eonceive that the following factors in particular- should be considered in determining whether a public offering is involved in a given transaction : “I. The number of offerees and their relationship to each other and to the issuer. You will note that this does not mean the number of actual purchasers, but the number of persons to whom the security in question is offered for sale. The word ‘offering’ in this sense should not be limited to those cases wherein a formal proposal for a firm commitment is submitted. Any attempt to dispose of a security should be regarded as an offer. I have very serious doubt as to whether in many of those cases where it is stated that an offering is to be made only to an insubstantial number of persons, there may not be preliminary conversations for the purpose of ascertaining which of various possible purchasers would be willing to accept an offer of the security in question if it were made to them. Any such preliminary negotiations or conversations with a substantial number of prospective purchasers would, in my opinion, cause the offering in question to be a public offering, thereby necessitating prior registration of the security in question. “Again, in determining what constitutes a substantial number of offerees the basis on which the offerees are selected is of the greatest importance. Thus, an offering to a given number of persons chosen from the general public on the ground that they are possible purchasers may be a public offering even though an offering to a larger number of persons who are all the members of a particular class, membership in which may be determined by the application of some preexisting standard, would be a nonpublic offering. However, I have no doubt but that an offering restricted to a particular group or class may nevertheless be a public offering if it is open to a sufficient number of persons. “I also regard as significant the relationship between the issuer and the of-ferees. Thus, an offering to the members of a class who should have special knowledge of the issuer is less likely to be a public offering than is an offering to the members of a class of the same size who do not have this advantage. This factor would be particularly important in offerings to employees, where a class of high executive officers would have a special relationship to the issuer which subordinate employees would not enjoy. “2. The number of units offered. If the denominations of the units are such that only an insubstantial number of units is offered, presumably no public offering would be involved. But where many units are offered in small denominations, or are convertible into small denominations, there is some indication that the issuer recognizes the possibility, if not the probability, of a distribution of the security to the public generally. The purpose of the exemption of nonpublic offerings would appear to have been to make registration unnecessary in these relatively few cases where an issuer desires to consummate a transaction or a few transactions and where the transaction or transactions are-of such a nature that the securities in question are not likely to come into the-hands of the general public. “In connection with a consideration of the number of units offered, I would also consider whether the same or other securities of the same issuer are being' offered at the same time. I' feel that this circumstance has a bearing on the character of the offering. “3. The size of the offering. It should be noted that the exemption of Section 4(1) is of transactions by an issuer not involving any public offering. In view of this language, it would appear to be proper to consider not merely the specific transaction or transactions between the issuer and the initial purchasers, but also the extent to which a later public offering of all or part of the securities sold by the issuer is likely. Hence I feel that this exemption was intended to be applied chiefly to small offerings, which in their nature are less likely to be publicly offered even if redistributed. “For the same reason I feel that a material consideration is whether the security in question is part of an issue already dealt in by the public, either on a national securities exchange or on the over-the-counter market, or, within the reasonable contemplation of the parties, is likely thus to be dealt in shortly after its issuance. This factor again may indicate whether public distribution of the security in question is likely within a reasonable time. “4. The manner of offering. I have already indicated my opinion that the purpose of the exemption of monpublie offerings is largely limited to those cases wherein the issuer desires to consummate a few transactions with particular persons. Consequently, I feel that transactions which are effected by direct negotiations by the issuer are much more likely to be nonpublic than those effected through the use of the machinery of public distribution. “I have gone into this matter at length in order that you may be apprised of the many elements which in -my opinion go into tlio determination of what constitutes a transaction not involving any public offering. There may be some situations where all the factors are so clear that it would be possible to express a definite opinion. In a situation such as you present, however-, I feel that the offering would be carefully scrutinized by any court before which it may come and that any letter which purported to describe the situation, and on which my opinion would necessarily be based, could not adequately advise as to the various factors which are involved. “I call your attention to the fact that any dealer who might subsequently purchase from an initial purchaser the se-eux-ities which you propose to offer, would be required to satisfy himself that the initial purchaser had not purchased with a view to distribution. If the initial purchaser had purchased with this inteixt, he would be an underwriter, and sales by a dealer of securities bought by him from such an initial pux-chaser would, as a general rule, not be exempt until at least a year after the purchase of the securities by the dealer. The sale of unregistered securities to a limited number of initial purchasers, therefore, leads to a practical situation in which such initial purchasers may have difficulty in disposing of the securities purchased by them. Any opinion which I might render in connection with the proposed offering might, I fear, be availed of by the issuer ox- by an initial purchaser as a means of satisfying a dealer, at a later date, that he might purchase the securities in question and market them without risk of violating the Act. You will appreciate that my opinion would not actually have this effect, since in the case of each transaction there would be involved various matters of fact on which I am not in a position to express an opinion. “Accordingly, it seems a much wiser policy for me not to express an opinion in the situation which you present as to whether a public offering is involved.” Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". COMMISSIONER OF INTERNAL REVENUE v. AFFILIATED ENTERPRISES, Inc. No. 2303. Circuit Court of Appeals, Tenth Circuit. Nov. 11, 1941. Rehearing Denied Dec. 16, 1941. Louise Foster, Sp.Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and Harry Marselli, Sp. Assts. to Atty. Gen., on the brief), for petitioner. Albert J. Gould, of Denver, Colo., for respondent. Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges. HUXMAN, Circuit Judge. The question presented on this appeal is whether Affiliated Enterprises, Inc., the respondent taxpayer, for the years in question was a personal holding company within the meaning of Sec. 351 of the Revenue Acts of 1934 and 1936, 26 U.S.C.A. Int.Rev.Acts, pages 757, 936, and therefore subject to the surcharge taxes imposed therein. The Board of Tax Appeals held that it was not, and the Commissioner has appealed. The applicable portion of Sec. 351 of the Revenue Act of 1934 provides that: “The term ‘personal holding company’ means any corporation * * * if — (A) at least 80 per centum of its gross income for the taxable year is derived from royalties, dividends, interest, annuities, and * * * (B) at any time during the last half of the taxable year more than 50 per centum in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals.” C. U. Yaeger and Rick Ricketson evolved a scheme or plan designed to stimulate public interest in the motion picture ■ industry and increase attendance in motion picture theaters. The system was generally designated “Bank Night,” although it was also operated under the names of “Cash Night,” “Gold Night,” “Surprise Night,” and “Fortune Night.” In 1933 the plan was incorporated under the name “Affiliated Enterprises, Inc.” The authorized capital stock was 10,000 shares, of no par value. At the time of the incorporation, 100 shares were issued to Rick Ricketson, 100 shares to C. U. Yaeger, and 1 share to. Emmett Thurmon. The only additional stock issued was on November 3, 1934, when 100 shares were issued to Clover Yaeger, wife of C. U. Yaeger, and 100 shares to Maizie Ricketson, wife of Rick Ricketson. The company did an extensive business from the beginning. Its total earnings for the years 1934, 1935 and 1936 were, respectively, $116,982.17, $364,-465.41, and $770,558.31. It appears conclusively that more than fifty per cent of the outstanding stock of the corporation was owned by not more than five persons. As a matter of fact, the entire outstanding stock was owned by five persons and of this, all but one share was owned by the two originators of the scheme and their wives. It remains, therefore, only to inquire whether at least eighty per cent of Respondent’s income was derived from the sale of royalties, dividends, interest or annuities within the meaning of the applicable Revenue Acts. Respondent described its system as the affiliated system and stated in its printed instructions that it was a system of advertising. The materials used in operating the system consisted of two registration books, cards, posters, and film trailers advertising bank night. The system operated in the following way: Any person over sixteen years of age was permitted to register in a registration book in the lobby of the theater, without purchasing a ticket, and each name was assigned a number. Only one registration was permitted and transfer of names to a second registration book was made to prevent duplication of names. A sum of money was placed in an account in a local bank each week. The drawing night and other details were advertised during the program by film trailers. On the drawing night, a number was drawn on the stage from a box. The winner was announced, both outside and inside the theater, and the winner could enter the theater, without purchasing a ticket, and claim the money. Respondent made application November 21,1933, for a patent on “Means of Conducting Prize Drawings,” but the application was rejected January 16, 1934. An amendment to the application was rejected April 11, 1935. Respondent had further applications for patents pending in 1937 and 1938. These also were rejected. Respondents did obtain copyrights on certain film trailers and instruction sheets, which described the system. These copyrighted articles were used in the operation of the system in 1933, 1934 and 1935. Respondent did not register the name “Bank Night” as a trade name with the United States Department of Commerce, but did register it in most of the states. Respondent solicited agreements in writing with theater operators granting them the right to use its system in their theaters. The contract was designated “Bank Night License Agreement.” It provided that respondent granted the licensee a limited license to use Bank Night, including the trade mark, copyrights and patents pending. It agreed to furnish licensee with cards, record books, posters, and film trailers. In addition, respondent gave advice and instructions in the use of the system and defended the licensees against legal actions arising from the use of the system. It published a bulletin giving information on matters affecting the use of the system and instituted a service giving advice to theater operators. In return, the licensee acknowledged respondent’s ownership of the trade marks, copyrights and patents pending, and acknowledged that payment was given for the rights that respondent might have in the things mentioned. A majority of the contracts provided for the payment of a stipulated license fee of from five to ten dollars per week throughout the terms of the contracts. Respondent discontinued the licensing of its system in 1938 when a fraud order was issued against it by the Post Office Department on the grounds that its system constituted a lottery. The Board seems to have based its decision on the ground that respondent had no property rights in its idea or system on which it could give licenses to others, because the system was not patentable. The test is whether the idea is new or novel and has value. Singer v. Karron, 162 Misc. 809, 294 N.Y.S. 566; Keller v. American Chain Co., 255 NY. 94, 174 N.E. 74; Soule v. Bon Ami Co., 201 App.Div. 794, 195 N.Y.S. 574; Haskins v. Ryan, 75 N.J.Eq. 330, 78 A. 566; Masline v. New York, N. H. & H. R. Co., 95 Conn. 702, 112 A. 639. A patent simply grants the exclusive right to the use of the creative idea. But the creative or novel idea would still have value and be subject to contract in the absence of a patent statute. When a patent expires, the creative idea does not cease to have value; it simply becomes the common property of all. Respondent contends that it was not the intent of Congress to include within the ambit of the statute an operating company, but only such companies as are pure holding companies. The Act is clear and unambiguous. It provides that it shall apply to companies which, among other requirements of the Act, receive at least eighty per cent of their income from royalties. It makes no distinction between companies that receive such income from active operation or simply from holding royalty payment contracts and receiving and distributing the payments. In Noteman v. Welch, 1 Cir., 108 F.2d 206, it was held that a corporation which received more than eighty per cent of its income from interest payments came within the holding company Act, notwithstanding that it was an operating company. Congress has laid down the pattern and it is only for us to determine whether petitioner falls therein. As was said in O’Sullivan Rubber Co. v. Commissioner, 2 Cir., 120 F.2d 845, 848, we may not by probing into corporate motives undertake to relieve from the alleged harshness of a particular application of the statute. In each year in question, much more than eighty per cent of all money received by respondent came from license payments under these contracts. It remains, therefore, only to consider whether the payments may fairly be classified as royalty payments. We are not so much concerned with the niceties of distinction in a razor-edged definition of the word “royalty” as with the reasonable import and construction of a taxing statute. Taxation is eminently practical. Tyler v. United States, 281 U.S. 497, 503, 50 S.Ct. 356, 74 L.Ed. 991, 69 A.L.R. 758. Nor are we so much concerned with a play upon words as we are with a reasonable construction of the Act that will effectuate a legitimate exercise of the essential governmental function of taxation. We must look through the form to the substance. Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731; Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368; Harrison v. Schaffner, 312 U.S. 579, 581, 61 S.Ct. 759, 85 L.Ed. 1055; Rotorite Corp. v. Commissioner, 7 Cir., 117 F.2d 245; Commissioner v. Buck, 2 Cir., 120 F.2d 775. In general, “royalty” is defined as a tax or duty or compensation paid to owners of a patent or copyright for the use of it or the right to act under it. 2 Bouv. Law Diet., Rawle’s Third Revision, p. 2975 ; Webster’s International Dictionary. While payment ordinarily is at a certain rate for each article or certain per cent of the gross sale, that in itself is not determinative. The purpose for which the payment is made and not the manner thereof is the determining factor. And while we ordinarily think of royalty as payment for patentable or copyrightable articles, it is not necessarily required that the creative idea be subject to patent or copyright. In Volk v. Volk Mfg. Co., Inc., 101 Conn. 594, 126 A. 847, it was held that the term “royalty.” applied to non-patentable improvements. To the same effect, see McGill v. Holmes, Booth & Haydens, 48 App.Div. 628, 64 N.Y.S. 787. The departmental regulations define “royalty” as amounts received not only for the use of patents and copyrights, but for secret processes and formulas, good will, trade marks, trade brands, franchises, and other like property. This interpretation has appeared in all the departmental regulations. In the meantime, Congress has met a number of times without changing the interpretation placed upon the term by the department. Under these circumstances, the administrative interpretation given the term “royalty” must be deemed to have received legislative approval and is entitled to great weight. Furthermore, it as apparent from the record that respondent in its dealings with theater operators treated the transaction as one involving the payment of royalty for the use of a creative, novel idea possessing utility. During all the years involved, it had pending applications for a patent and copyright. The trade name was registered in the states in which it operated. The contract was headed: “Bank Night License Agreement.” It recited that respondent was the owner of the copyrighted and trade mark name, “Bank Night,” and of certain copyrights and patents pending. It specifically stated that the intent of the agreement was to grant the licensee the right to use the copyright and trade mark name, “Bank Night,” and all copyrighted articles. The parties at the time certainly thought they were dealing with reference to an idea subject to protection by patent or copyright, and that the transaction involved royalty payments. The fact that thereafter the applications for patent and copyright were denied did not change the nature of the transaction. We have no difficulty in concluding that more than eighty per cent of respondent’s income was derived from royalty payments or like payments within the meaning of Sec. 351 of the Revenue Acts of 1934 and 1936 and the administrative interpretation placed thereon by the department extending over a number of years, and that respondent meets all the tests of a holding company within the meaning of the Revenue Acts in question. Reversed. Hereinafter called the taxpayer. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Abraham M. KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Harry A. KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Samuel KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Max KATZ, Defendant, Appellant, v. UNITED STATES of America, Appellee. Nos. 6082-6085. United States Court of Appeals First Circuit. July 12, 1963. Certiorari Denied Nov. 12, 1963. See 84 S.Ct. 193. Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass., was on brief, for appellants. Paul J. Redmond, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., and Daniel B. Bickford, William F. Looney, Jr., and John J. Curtin, Jr., Asst. U. S. Attys., were on brief, for appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. ALDRICH, Circuit Judge. These are appeals by four defendants, convicted at a joint trial on a total of twelve counts for attempting to evade income taxes by filing false and fraudulent personal returns for one or more of the years 1955 to 1958. The defendants, three brothers and a brother-in-law, were the officers, directors and stockholders of State Line Potato Chip Company, Inc. Defendant Max Katz, the principal and managing officer of the company, will hereinafter be referred to as Max, and the rest, collectively, as the other defendants. The other defendants sought trial separately from Max, alleging that their cases were essentially different, and, further, that they would be prejudiced by certain extrajudicial admissions allegedly made by Max and con-cededly not binding upon them. On the government’s representation that “basically the evidence would be the same” against all four (it did not deny individual differences, or that Max had made personal admissions) the court refused to sever. It added, “[I]f at the end I find there has been prejudice, I won’t hesitate to act.” Thereafter the court did, in fact, act. Initially there had been included four counts against Max for causing falsification of the corporate returns. After the trial began, apparently feeling that in that matter the basic evidence was different, with Max’s permission the court granted a mistrial on those counts and postponed them to a later date. It took no subsequent action with respect to separating the other counts, nor was it asked to. The mere fact that all the evidence is not admissible against all defendants does not necessitate separate trials. Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101; Ma-latkofski v. United States, 1 Cir., 1950, 179 F.2d 905. Having read the full record we are well satisfied that it was appropriate to try the remaining cases together. The defendants moved to quash the indictment, and to strike the petit jury panel, because of the manner of drawing the grand and petit juries. One of their grounds we have since disposed of in Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, cert. den. 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052. The other is an alleged discrimination in that no jurors were drawn from that part of the district which lies west of Worcester County. 28 U.S.C.A. § 1865(a) provides, “(a) Grand and petit jurors shall from time to time be selected from such parts of the district as the court directs so as to be most favorable to an impartial trial, and not to incur unnecessary expense or unduly burden the citizens of any part of the district with jury service. To this end the court may direct the maintenance of separate jury boxes for some or all of the places for holding court in the district and may appoint a jury commissioner for each such place.” The clerk stated in open court that when the court was sitting in Boston it was standard procedure not to call jurors from west of Worcester County. We take judicial notice that this has been so for many years. In the light of this statute there can certainly be no abuse in not calling jurors who live over 60 miles from the courthouse. The defendants’ point is groundless. United States v. Gottfried, 2 Cir., 1948, 165 F.2d 360, cert. den., 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139. Prior to trial the defendants moved for the suppression of a certain “black book” and the “fruits thereof.” The court properly found, on adequate testimony, that this book was a corporate record, and had been taken by the government after it had been tendered to the agent by Max (albeit that Max misrepresented its content, causing the tender to be initially refused) and that no constitutional rights had been infringed. The point pressed on this appeal, except for arguments based upon testimony properly discredited by the district court, is that subsequently, at the trial, the revenue agent testified that he had not stated his exact purpose when asking for the book. We will assume, without deciding, that this testimony may be related back to the motion. Even so, the present contention is both late and specious. It is too late because even when the motion was reargued to the district court the point was not made. It is specious because even if it be assumed that to request a document by stating that it is wanted for one reason when another reason is the one primarily in mind may be a misrepresentation, there is no evidence that Max was misled. Analysis, not necessary to articulate, indicates that he could not have been. Coming to the merits, there are only two substantial questions; the court’s permitting the jury to find that certain corporate distributions constituted income wilfully concealed by individual defendants, and the marking of the corporate books as exhibits. These questions require a brief summary of the evidence. On the testimony of Max and the two other defendants who took the stand, which we may largely accept in this particular, the general management and all of the fiscal affairs, including making all the entries in the books of the company were, with the acquiescence of the other defendants, handled by Max alone. The other defendants took no action in their several capacities of officers and directors, attended no meetings, and signed “minutes” and other papers without reading. Max’s authority extended even to a single-handed “big-brother” decision as to all corporate distributions to all defendants, whether by way of salary, bonus, or otherwise. The evidence warranted a finding that payments pursuant to Max’s determination were made continually, not onfy by the common device of having the company satisfy personal bills, in some instances under the guise of having them appear to be corporate expenses, but also by deposits into over two hundred savings bank accounts, and into a war savings bond account from which bonds were bought which were subsequently redeemed by individual defendants. Many of these savings accounts were in joint names, to include a child of the defendant, but in most instances the children testified that they had no knowledge that the accounts existed. This warranted an inference that the individual defendants retained full ownership, and that not merely the deposits, but accrued interest, constituted personal income. Testimony was introduced, also, as to the payment of bills and the purchase of property, tangible and intangible, for defendants’ children. On the government’s evidence the resulting direct and attributable income greatly exceeded that stated on the returns. A primary defense of the other defendants to this showing was that they were unaware that Max had made many of these distributions. In support thereof Max testified that he did not disclose the bank accounts to the others and that he made the deposits, and various other payments, surreptitiously for his own private purposes, planning their subsequent recapture; in short, that this was a concealed embezzlement. The jury could find it inherently improbable that if Max intended these to be secret, improper transfers of corporate assets against the interest of his brothers he would have made them in this elaborate manner in which his brothers and their children were so frequently given at least record title or control. In addition, there was testimony of a handwriting expert warranting the jury in finding that the other defendants had substantial notice, and in many instances specific knowledge from Max that this distribution procedure was in process. The defense presented, at best, an issue of fact which the court fully put to the jury. The government’s first witness testified that all defendants executed their returns in blank, and that the witness, as the accountant, thereafter prepared the returns of all four on the basis of information given him by Max, and filed them without further verification. Two of the other defendants acknowledged this, but testified that they supplied Max with personal data. However, they admitted that with respect to the substantial matter of corporate distributions and withholding they never knew the correct amounts and relied upon Max to ascertain them as well as to inform the accountant. A return is not short of wilful falsity because the taxpayer chooses to keep himself uninformed as to the full extent that it is insufficient, or as to what exact figures should have been inserted. Innocence can not outdistance ignorance. The jury was warranted in finding that all defendants knew Max was not revealing their full income. This was enough. The other principal issue relates-to the admission of the corporate records. Although it was open to the jury to find that the records were authentic, United States v. Tellier, 2 Cir., 1958, 255 F.2d 441, cert. den., 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62, the government made no attempt to prove that they were made in the regular course of business, and hence admissible under 28 U.S.C.A. § 1732. We may agree with the defendants, other than Max who prepared and was personally responsible for them and cannot make the point, that corporate records not so kept are normally inadmissible against officers and directors who are not shown to have been responsible for them, or to have had actual knowledge of their content, in cases involving personal (as distinguished from corporate, cf. Cooper v. United States, 8 Cir., 1925, 9 F.2d 216) matters. Worden v. United States, 6 Cir., 1913, 204 F. 1; Osborne v. United States, 9 Cir., 1927, 17 F.2d 246, cert. den. 274 U.S. 751, 47 S.Ct. 765, 71 L.Ed. 1332. But. cf. United States v. Tellier, supra. The court admitted the records generally, but charged the jury that they should be considered against a particular defendant only if it found that they had been kept in the regular course of business and that the defendant had had opportunity of access thereto. This was a peculiar ruling, not only because if the records had been made in the regular course of business they would appear admissible under Section 1732 even if the defendant did not have access, but, more important, because it was never shown, and seemingly never even claimed, that they were so kept. The jury was not instructed as to the meaning of “kept in the regular course of business,” and must have assumed that the evidence warranted such a finding. Since it did not, this condition could not be effective, and whatever the jury did because of it can be of no legal consequence. We must accordingly interpret the court’s instruction as merely requiring the jury to find that the records were accessible. Under the unusual circumstances of this case, however, we think this was a sufficient limitation. Where the defendants were all the officers, directors and stockholders of the company, the singular, absolute authority delegated to Max by the others to manage all their affairs could not fail to make him their agent with respect to keeping the corporate books, at least to the extent that the books were open to their inspection, Cf. United States v. Feinberg, 2 Cir., 1944, 140 F.2d 592, 154 A.L.R. 272, cert. den., 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562. Any other result would put a premium on the defendants’ voluntary anopsia. One final matter. The other defendants contend that a substantial number of payments attributed to them by the government were shown (conclusively, they say, and for present purposes we will so assume) to have been beneficially received by Max, instead, or to have represented repayments of amounts loaned to the corporation on open account. These defendants claim the totals are so large that, with the possible exception of one or two counts as to one of them, they did not in fact underpay their taxes, and that, accordingly, their motions for acquittal should have been granted. Examination of the evidence as a whole, however, discloses that in order for each defendant to have overpaid his tax certain additional items of income must be eliminated as to which, once the corporate records are admitted, there was a clear issue of fact. This, of course, was enough; the extent of the underpayment was not vital. United States v. Johnson, 1943, 319 U.S. 503, 517, 63 S.Ct. 1233, 87 L.Ed. 1546. There was no error in denying the motions. Judgment will be entered affirming the judgments of the District Court. . One matter perhaps necessary to mention is the trial court’s observation, when the clerk stated that for Boston sittings jurors were never drawn from west of Worcester County, that it was “ * * * a lucky thing I am not a witness in this case. I know better.” Defendants seek to make something of this. We have currently inspected a number of jury requisitions in the files of the district court signed by this judge, including the requisition preceding the drawing of this particular petit jury, and they all, in accordance with the regular practice, provide for calling “persons residing in cities and towns in Worcester County and Counties to the east thereof * * * ” and none other. The court’s contrary “knowledge” can only be regarded as a hasty remark, quite out of keeping, it may be added, with its meticulous conduct of the trial. . This book did not go to the jury, and the only suggested “fruit” was an extrajudicial admission by Max, when confronted by the book, that he had falsified certain other records. Since this admission was not permitted to be considered against the other defendants, strictly Max alone is presently interested in this question. . Several small matters are raised which do not warrant discussion. The defendants press two evidentiary exceptions with respect to which, if there were error, the issues were so minuscule that there could be no possible prejudice. Do-fendants also complain of the court’s alleged refusal to grant four requests for instructions. To the extent these instructions were not clearly given in substance, in some instances repetitiously by explicit qualifying instructions when the evidence referred to was introduced, the requests were erroneous. . Indeed, in a brief distinguished by its brevity, the government has, except as to Max, failed to offer any authority or reason why the records should have been admitted at all. . As to one defendant the issue was over what inferences should be drawn as to certain checks. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel2_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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 which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). O’CONNOR et al. v. MILLS et al. No. 10662. Circuit Court of Appeals, Eighth Circuit. July 8, 1937. J. A. Tellier, of Little Rock, Ark., for appellants. Harry B. Solmson, Jr., of Little Rock, Ark. (Max F. Goldberg, of Chicago, 111., and J. W. House, of Little Rock, Ark., on the brief), for appellees. Before WOODROUGH, THOMAS, and FARTS, Circuit Judges. THOMAS, Circuit Judge. This appeal is from a decree of the District Court dismissing a creditors’ petition for reorganization of White & Black Rivers Bridge Company, a corporation, debtor, under section 77B of the Bankruptcy Act (11 U.S.C.A. § 207). The appellants are four bondholders, owning $4,000 par value of a $400,000 bond issue of the company, and one unsecured creditor. Prior to the approval of the petition as properly filed, appellees Mills, Champlin, and Wilson, as members of a bondholders protective committee claiming ownership and control of $395,500 par value of the original $400,000 bond issue, and Counselman, Sherman, and Thresher, owners of a total of $50,000 par value of such bonds, filed a response opposing the approval of the petition on the grounds that (1) it did not comply with the provisions of the statute, and that (2) it was not filed in good faith. Upon the hearing it was stipulated in open court “that all the allegations * * * made in the petition of the creditors are correct, and the sole issue presented to the court is the question of good faith of the petitioners.” The good faith of the appellants in filing the petition was the only question finally decided by the District Court, and his adverse ruling upon that question is the only question presented upon appeal. Section 77B, 48 Stat. 912, 49 Stat. 664, 965 (11 U.S.C.A. § 207), provides that “Upon the filing of such a petition or answer the judge shall enter an order either approving it as properly filed tinder this section if satisfied that such petition or answer complies with this section and has been filed in good faith, or dismissing it.” What constitutes good faith within the meaning of the statute was considered by the Supreme Court in Tennessee Pub. Co. v. American Nat. Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. - wherein the Chief Justice, speaking for the court, said: “Nor do we need to inquire as to the precise limits of the concept of ‘good faith’ as required by section 77B. Whatever these limits may be, the statute clearly contemplates the submission of a plan of reorganization which admits of being confirmed as ‘fair and equitable’ and as ‘feasible.’ However honest in its efforts the debtor may be, and however sincere its motives, the District Court is not bound to clog its docket with visionary or impracticable schemes for resuscitation. Subsection (f) of section 77B (11 U.S.C.A. § 207 (f) provides for the confirmation of a plan only if the District Judge is satisfied that ‘(1) it is fair and equitable and does not discriminate unfairly in favor of any class of creditors or stockholders, and is feasible.’ These are prime conditions. Unless the District Judge finds that the plan has these qualities, he need go no further. Unless he so finds, he has no authority to proceed.” . The District Court in the instant case, after a lengthy hearing, held that “there can be no reasonable or feasible or practical plan of reorganization submitted by the petitioners herein * * * ”; and the court dismissed the petition “as insufficient to»comply with the requirements of section 77B of the Bankruptcy Act.” Appellees contend that the court’s finding that no feasible plan of reorganization of the debtor corporation could be effected under section 77B is conclusive up-, on this court. The question of good faith is, of course, a fact question, In re Augustyn (C.C.A.7) 87 F.(2d) 577, the determination of which is by the statute committed to the discretion of the District Court, Jahn v. Llewellin (C.C.A.7) 86 F.(2d) 588. However, his finding is reviewable on appeal by this court, but will not be set aside unless clearly shown to be erroneous. Brockett v. Winkle Terra Cotta Company (C.C.A.8) 81 F.(2d) 949, and cases there cited. The appellants earnestly insist that the evidence conclusively establishes the good faith of petitioners, and that the court erred in dismissing the petition. They urge that good faith is shown by the need of reorganization of the corporation; by the intent and purpose of the statute to rehabilitate corporations and to preserve the rights of creditors and stockholders so far as it is feasible; by a definite prospect of reorganization ; and by the fact that petitioners seek reorganization under 77B in order to supplant reorganization under the harsh equity receivership rule. These contentions require a brief examination of the evidentiary facts upon which the trial court based his finding. The decree, including the findings, discloses-that the District Court based his conclusion that no feasible plan of reorganization-under 77B could be effected upon the fact that since 1932 the corporation had been in the process of reorganization in an equity receivership and a foreclosure proceeding in his court, and upon the situation, resulting from such proceedings. The same parties have been active in the litigation from the beginning. Two appeals in the foreclosure proceeding have been .before this court. Bovay v. Townsend, 78 F.(2d) 343, 105 A.L.R. 359; O’Connor v. Townsend, 87 F.(2d) 882. The history of the debtor corporation and the factional contentions of the parties are largely set out in the opinions in those cases. Townsend, the trustee in the original bond issue of $400,000, instituted the foreclosure proceeding. That suit had proceeded to final sale of all the property of the debtor corporation, but not confirmation, at the time the petition under 77B was filed. The property of the corporation consisted principally of two toll bridges over two different rivers in Arkansas about 85 miles apart. After the beginning of the receivership proceeding, which antedated the foreclosure suit, appellees Mills,'Champlin, and Wilson constituted themselves a bondholders protective committee, and circularized the bondholders, 357 in number. With the written consent and approval of the holders of $395,500 par value of the bonds, they organized a corporation called the Des Arc & Powhatan Bridge Company to be owned by the bondholders in proportion to their respective shares in the total bond issue of $400,000. Under the plan proposed, the committee were trustees and managers for the new corporation. At the final sale of the property in the foreclosure proceeding the new company bid in the assets for $110,-000. In the instant case, the court found that the property is not worth in excess of that amount. The record before this court in Bovay v. Townsend, supra, indicated that if the property were valued on the basis of the average annual earnings over a five-year period (less depreciation) capitalized at 6 per cent., such value would have been $290,000. While petitioners allege in their petition that its value is $750,-000, there is no testimony to support their optimism. ' The judgment in the foreclosure suit is for $439,276, and there is no testimony that would justify a finding that the property is worth that sum. The stockholders in, and the unsecured creditors of, the debt- or corporation therefore have no interest in this proceeding. In re 620 Church St. Building Corp., 299 U.S. 24, 27, 57 S.Ct. 88, 89, 81 L.Ed. -. There being no equity in the property, they have no interest to be protected. The present proceeding first came to hearing before the court on October 25, 1935. After the submission of the testimony of the parties, the court granted an extension of thirty days to give petitioners an opportunity to secure the acceptance by the bondholders of their plan of reorganization, and to that end he directed appellee Mills and his attorney to furnish them a list of the bondholders. One of the points urged here is that Mills acted unfairly in this matter. Before furnishing the list, he circularized the bondholders himself, no doubt for the purpose of prejudicing them in favor of his plan and against petitioner’s, called the Bovay plan. But the list was finally furnished and Bovay by letter and printed circular presented his plan and his contentions in a most attractive way and appealed for their approval. When the matter carne on for further hearing on December 18, 1935, it appeared that petitioners had secured written approval of their plan from the holders of bonds in the amount of only $5,500 par value. Five persons holding bonds in the aggregate amount of approximately $10,-000 joined the petitioners in requesting the court for a further extension of thirty days to consider the matter. On the other hand, Mills and his colleagues had secured an expression of approval of their plan of reorganization in the receivership proceeding and against the Bovay plan from holders oí more than $300,000 par value of the bonds. Among those favoring the appellees’ plan was a banking institution holding $92,500 par value of bonds. It is further insisted that the court because of the superior fairness of the Bovay plan should have proceeded under subsection (b) (5), section 77B (11 U.S.C. A. § 207(b) (5). It is claimed that Bovav’s plan could have been so modified that it would be feasible under that subsection without the consent of the bondholders. Since, however, the bondholders were the only interested parties, and since only an insignificant minority of them favored the proceeding, the court was justified in dismissing the petition on the ground that the plan in contemplation of the petitioners was not feasible. The decree of the District Court dismissing the petition is 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)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_lcdisposition	F	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE et al. v. CLAIBORNE HARDWARE CO. et al. No. 81-202. Argued March 3, 1982 — Decided July 2, 1982 Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, and O’Connor, JJ., joined. Rehnquist, J., concurred in the result. Marshall, J., took no part in the consideration or decision of the case. Lloyd N. Cutler argued the cause for petitioners. With him on the briefs were James Robertson, Edward Tynes Hand, William R. Richardson, Jr., John Payton, Thomas I. Atkins, Charles E. Carter, William L. Robinson, and Frank R. Parker. Grover Rees III argued the cause for respondents. With him on the briefs were Crane D. Kipp, Christopher J. Walker, and Dixon L. Pyles Briefs of amici curiae urging reversal were filed by John Vanderstar, Charles S. Sims, and Phyllis N. Segal for the American Civil Liberties Union et al.; by J. Albert Woll, Laurence Gold, and George Kaufmann for the American Federation of Labor and Congress of Industrial Organizations; and by Paul S. Berger, David Bonderman, Leonard B. Simon, and Nathan Z. Dershowitz for the American Jewish Congress. Justice Stevens delivered the opinion of the Court. The term “concerted action” encompasses unlawful conspiracies and constitutionally protected assemblies. The “looseness and pliability” of legal doctrine applicable to concerted action led Justice Jackson to note that certain joint activities have a “chameleon-like” character. The boycott of white merchants in Claiborne County, Miss., that gave rise to this litigation had such a character; it included elements of criminality and elements of majesty. Evidence that fear of reprisals caused some black citizens to withhold their patronage from respondents’ businesses convinced the Supreme Court of Mississippi that the entire boycott was unlawful and that each of the 92 petitioners was liable for all of its economic consequences. Evidence that persuasive rhetoric, determination to remedy past injustices, and a host of voluntary decisions by free citizens were the critical factors in the boycott’s success presents us with the question whether the state court’s judgment is consistent with the Constitution of the United States. I — I In March 1966, black citizens of Port Gibson, Miss., and other areas of Claiborne County presented white elected officials with a list of particularized demands for racial equality and integration. The complainants did not receive a satisfactory response and, at a local National Association for the Advancement of Colored People (NAACP) meeting at the First Baptist Church, several hundred black persons voted to place a boycott on white merchants in the area. On October 31, 1969, several of the merchants filed suit in state court to recover losses caused by the boycott and to enjoin future boycott activity. We recount first the course of that litigation and then consider in more detail the events that gave rise to the merchants’ claim for damages. A The complaint was filed in the Chancery Court of Hinds County by 17 white merchants. The merchants named two corporations and 146 individuals as defendants: the NAACP, a New York membership corporation; Mississippi Action for Progress (MAP), a Mississippi corporation that implemented the federal “Head Start” program; Aaron Henry, the President of the Mississippi State Conference of the NAACP; Charles Evers, the Field Secretary of the NAACP in Mississippi; and 144 other individuals who had participated in the boycott. The complaint sought injunctive relief and an attachment of property, as well as damages. Although it alleged that the plaintiffs were suffering irreparable injury from an ongoing conspiracy, no preliminary relief was sought. Trial began before a chancellor in equity on June 11, 1973. The court heard the testimony of 144 witnesses during an 8-month trial. In August 1976, the chancellor issued an opinion and decree finding that “an overwhelming preponderance of the evidence” established the joint and several liability of 130 of the defendants on three separate conspiracy theories. First, the court held that the defendants were liable for the tort of malicious interference with the plaintiffs’ businesses, which did not necessarily require the presence of a conspiracy. Second, the chancellor found a violation of a state statutory prohibition against secondary boycotts, on the theory that the defendants’ primary dispute was with the governing authorities of Port Gibson and Claiborne County and not with the white merchants at whom the boycott was directed. Third, the court found a violation of Mississippi’s antitrust statute, on the ground that the boycott had diverted black patronage from the white merchants to black merchants and to other merchants located out of Claiborne County and thus had unreasonably limited competition between black and white merchants that had traditionally existed. The chancellor specifically rejected the defendants’ claim that their conduct was protected by the First Amendment. Five of the merchants offered no evidence of business losses. The chancellor found that the remaining 12 had suffered lost business earnings and lost goodwill during a 7-year period from 1966 to 1972 amounting to $944,699. That amount, plus statutory antitrust penalties of $6,000 and a $300,000 award of attorney’s fees, produced a final judgment of $1,250,699, plus interest from the date of judgment and costs. As noted, the chancellor found all but 18 of the original 148 defendants jointly and severally liable for the entire judgment. The court justified imposing full liability on the national organization of the NAACP on the ground that it had failed to “repudiate” the actions of Charles Evers, its Field Secretary in Mississippi. In addition to imposing damages liability, the chancellor entered a broad permanent injunction. He permanently enjoined petitioners from stationing “store watchers” at the respondents’ business premises; from “persuading” any person to withhold his patronage from respondents; from “using demeaning and obscene language to or about any person” because that person continued to patronize the respondents; from “picketing or patroling” the premises of any of the respondents; and from using violence against any person or inflicting damage to any real or personal property. In December 1980, the Mississippi Supreme Court reversed significant portions of the trial court’s judgment. 393 So. 2d 1290. It held that the secondary boycott statute was inapplicable because it had not been enacted until “the boycott had been in operation for upward of two years.” The court declined to rely on the restraint of trade statute, noting that the “United States Supreme Court has seen fit to hold boycotts to achieve political ends are not a violation of the Sherman Act, 15 U. S. C. § 1 (1970), after which our statute is patterned.” Thus, the court rejected two theories of liability that were consistent with a totally voluntary and nonviolent withholding of patronage from the white merchants. The Mississippi Supreme Court upheld the imposition of liability, however, on the basis of the chancellor’s common-law tort theory. After reviewing the chancellor’s recitation of the facts, the court quoted the following finding made by the trial court: “In carrying out the agreement and design, certain of the defendants, acting for all others, engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers. Intimidation, threats, social ostracism, vilification, and traduction were some of the devices used by the defendants to achieve the desired results. Most effective, also, was the stationing of guards (‘enforcers,’ ‘deacons,’ or ‘black hats’) in the vicinity of white-owned businesses. Unquestionably, the evidence shows that the volition of many black persons was overcome out of sheer fear, and they were forced and compelled against their personal wills to withhold their trade and business intercourse from the complainants.” App. to Pet. for Cert. 39b (quoted 393 So. 2d, at 1300). On the basis of this finding, the court concluded that the entire boycott was unlawful. “If any of these factors — force, violence, or threats — is present, then the boycott is illegal regardless of whether it is primary, secondary, economical, political, social or other.” In a brief passage, the court rejected petitioners’ reliance on the First Amendment: “The agreed use of illegal force, violence, and threats against the peace to achieve a goal makes the present state of facts a conspiracy. We know of no instance, and our attention has been drawn to no decision, wherein it has been adjudicated that free speech guaranteed by the First Amendment includes in its protection the right to commit crime.” Id,., at 1301. The theory of the Mississippi Supreme Court, then, was that petitioners had agreed to use force, violence, and “threats” to effectuate the boycott. To the trial court, such a finding had not been necessary. Although the Mississippi Supreme Court affirmed the chancellor’s basic finding of liability, the court held that respondents “did not establish their case” with respect to 38 of the defendants. The court found that MAP was a victim, rather than a willing participant, in the conspiracy and dismissed — without further explanation — 37 individual defendants for lack of proof. Finally, the court ruled that certain damages had been improperly awarded and that other damages had been inadequately proved. The court remanded for further proceedings on the computation of damages. We granted a petition for certiorari. 454 U. S. 1030. At oral argument, a question arose concerning the factual basis for the judgment of the Mississippi Supreme Court. As noted, that court affirmed petitioners’ liability for damages on the ground that each of the petitioners had agreed to effectuate the boycott through force, violence, and threats. Such a finding was not necessary to the trial court’s imposition of liability and neither state court had identified the evidence actually linking the petitioners to such an agreement. In response to a request from this Court, respondents filed a supplemental brief “specifying the acts committed by each of the petitioners giving rise to liability for damages.” Supplemental Brief for Respondents 1. That brief helpfully places the petitioners in different categories; we accept respondents’ framework for analysis and identify these classes as a preface to our review of the relevant incidents that occurred during the 7-year period for which damages were assessed. First, respondents contend that liability is justified by evidence of participation in the “management” of the boycott. Respondents identify two groups of persons who may be found liable as “managers”: 79 individuals who regularly attended Tuesday night meetings of the NAACP at the First Baptist Church; and 11 persons who took “leadership roles” at those meetings. Second, respondents contend that liability is justified by evidence that an individual acted as a boycott “enforcer.” In this category, respondents identify 22 persons as members of the “Black Hats” — a special group organized during the boycott — and 19 individuals who were simply “store watchers.” Third, respondents argue that those petitioners “who themselves engaged in violent acts or who threatened violence have provided the best possible evidence that they wanted the boycott to succeed by coercion whenever it could not succeed by persuasion.” Id., at 10. They identify 16 individuals for whom there is direct evidence of participation in what respondents characterize as violent acts or threats of violence. Fourth, respondents contend that Charles Evers may be held liable because he “threatened violence on a number of occasions against boycott breakers.” Id., at 13. Like the chancellor, respondents would impose liability on the national NAACP because Evers “was acting in his capacity as Field Secretary of the NAACP when he committed these tortious and constitutionally unprotected acts.” Ibid. Finally, respondents state that they are “unable to determine on what record evidence the state courts relied in finding liability on the part of seven of the petitioners.” Id., at 16. With these allegations of wrongdoing in mind, we turn to consider the factual events that gave rise to this controversy. B The chancellor held petitioners liable for all of respondents’ lost earnings during a 7-year period from 1966 to December 31, 1972. We first review chronologically the principal events that occurred during that period, describe some features of the boycott that are not in dispute, and then identify the most significant evidence of violent activity. In late 1965 or early 1966, Charles Evers, the Field Secretary of the NAACP, helped organize the Claiborne County Branch of the NAACP. The pastor of the First Baptist Church, James Dorsey, was elected president of the Branch; regular meetings were conducted each Tuesday evening at the church. At about the same time, a group of black citizens formed a Human Relations Committee and presented a petition for redress of grievances to civic and business leaders of the white community. In response, a biracial committee — including five of the petitioners and several of the respondents — was organized and held a series of unproductive meetings. The black members of the committee then prepared a further petition entitled “Demands for Racial Justice. ” This petition was presented for approval at the local NAACP meeting conducted on the first Tuesday evening in March. As described by the chancellor, “the approximately 500 people present voted their approval unanimously.” On March 14, 1966, the petition was presented to public officials of Port Gibson and Claiborne County. The petition included 19 specific demands. It called for the desegregation of all public schools and public facilities, the hiring of black policemen, public improvements in black residential areas, selection of blacks for jury duty, integration of bus stations so that blacks could use all facilities, and an end to verbal abuse by law enforcement officers. It stated that “Negroes are not to be addressed by terms as ‘boy/ ‘girl/ ‘shine/ ‘uncle/ or any other offensive term, but as ‘Mr./ ‘Mrs./ or ‘Miss,’ as is the case with other citizens.” As described by the chancellor, the purpose of the demands “was to gain equal rights and opportunities for Negro citizens.” The petition further provided that black leaders hoped it would not be necessary to resort to the “selective buying campaigns” that had been used in other communities. On March 23, two demands that had been omitted from the original petition were added, one of which provided: “All stores must employ Negro clerks and cashiers.” This supplemental petition stated that a response was expected by April 1. A favorable response was not received. On April 1, 1966, the Claiborne County NAACP conducted another meeting at the First Baptist Church. As described by the chancellor: “Several hundred black people attended the meeting, and the purpose was to decide what action should be taken relative to the twenty-one demands. Speeches were made by Evers and others, and a vote was taken. It was the unanimous vote of those present, without dissent, to place a boycott on the white merchants of Port Gibson and Claiborne County.” App. to Pet. for Cert. 15b. The boycott was underway. In September 1966, Mississippi Action for Progress, Inc. (MAP), was organized to develop community action programs in 20 counties of Mississippi. One of MAP’s programs— known as Head Start — involved the use of federal funds to provide food for young children. Originally, food purchases in Claiborne County were made alternately from white-owned and black-owned stores, but in February 1967 the directors of MAP authorized their Claiborne County representatives to purchase food only from black-owned stores. Since MAP bought substantial quantities of food, the consequences of this decision were significant. A large portion of the trial was devoted to the question whether MAP participated in the boycott voluntarily and — under the chancellor’s theories of liability — could be held liable for the resulting damages. The chancellor found MAP a willing participant, noting that “during the course of the trial, the only Head Start cooks called to the witness stand testified that they refused to go into white-owned stores to purchase groceries for the children in the program for the reason that they were in favor of the boycott and wanted to honor it.,, Several events occurred during the boycott that had a strong effect on boycott activity. On February 1, 1967, Port Gibson employed its first black policeman. During that month, the boycott was lifted on a number of merchants. On April 4, 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis. The chancellor found that this tragic event had a depressing effect on the black community and, as a result, the boycott “tightened.” One event that occurred during the boycott is of particular significance. On April 18, 1969, a young black man named Roosevelt Jackson was shot and killed during an encounter with two Port Gibson police officers. Large crowds immediately gathered, first at the hospital and later at the church. Tension in the community neared a breaking point. The local police requested reinforcements from the State Highway Patrol and sporadic acts of violence ensued. The Mayor and Board of Aldermen placed a dawn-to-dusk curfew into effect. On April 19, Charles Evers spoke to a group assembled at the First Baptist Church and led a march to the courthouse where he demanded the discharge of the entire Port Gibson Police Force. When this demand was refused, the boycott was reimposed on all white merchants. One of Evers’ speeches on this date was recorded by the police. In that speech — significant portions of which are reproduced in an Appendix to this opinion — Evers stated that boycott violators would be “disciplined” by their own people and warned that the Sheriff could not sleep with boycott violators at night. On April 20, Aaron Henry came to Port Gibson, spoke to a large gathering, urged moderation, and joined local leaders in a protest march and a telegram sent to the Attorney General of the United States. On April 21, Evers gave another speech to several hundred people, in which he again called for a discharge of the police force and for a total boycott of all white-owned businesses in Claiborne County. Although this speech was not recorded, the chancellor found that Evers stated: “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” As noted, this lawsuit was filed in October 1969. No significant events concerning the boycott occurred after that time. The chancellor identified no incident of violence that occurred after the suit was brought. He did identify, however, several significant incidents of boycott-related violence that occurred some years earlier. Before describing that evidence, it is appropriate to note that certain practices generally used to encourage support for the boycott were uniformly peaceful and orderly. The few marches associated with the boycott were carefully controlled by black leaders. Pickets used to advertise the boycott were often small children. The police made no arrests — and no complaints are recorded — in connection with the picketing and occasional demonstrations supporting the boycott. Such activity was fairly irregular, occurred primarily on weekends, and apparently was largely discontinued around the time the lawsuit was filed. One form of “discipline” of black persons who violated the boycott appears to have been employed with some regularity. Individuals stood outside of boycotted stores and identified those who traded with the merchants. Some of these “store watchers” were members of a group known as the “Black Hats” or the “Deacons.” The names of persons who violated the boycott were read at meetings of the Claiborne County NAACP and published in a mimeographed paper entitled the “Black Times.” As stated by the chancellor, those persons “were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.” The chancellor also concluded that a quite different form of discipline had been used against certain violators of the boycott. He specifically identified 10 incidents that “strikingly” revealed the “atmosphere of fear that prevailed among blacks from 1966 until 1970.” The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged. None of these four victims, however, ceased trading with white merchants. The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators. In April 1966, a black couple named Cox asked for a police escort to go into a white-owned dry cleaner and, a week later, shots were fired into their home. In another incident, an NAACP member took a bottle of whiskey from a black man who had purchased it in a white-owned store. The third incident involved a fight between a commercial fisherman who did'not observe the boycott and four men who “grabbed me and beat me up and took a gun off me.” In a fourth incident, described only in hearsay testimony, a group- of young blacks apparently pulled down the overalls of an elderly brick mason known as “Preacher White” and spanked him for not observing the boycott. Two other incidents discussed by the chancellor are of less certain significance. Jasper Coleman testified that he participated in an all-night poker game at a friend’s house on Christmas Eve 1966. The following morning he discovered that all four tires of his pickup truck had been slashed with a knife. Coleman testified that he did not participate in the boycott but was never threatened for refusing to do so. Record 13791. Finally, Willie Myles testified that he and his wife received a threatening phone call and that a boy on a barge told him that he would be whipped for buying his gas at the wrong place. Five of these incidents occurred in 1966. The other five are not dated. The chancellor thus did not find that any act of violence occurred after 1966. In particular, he made no reference to any act of violence or threat of violence — with the exception, of course, of Charles Evers’ speeches — after the shootings of Martin Luther King, Jr., in 1968 or Roosevelt Jackson in 1969. The chancellor did not find that any of the incidents of violence was discussed at the Tuesday evening meetings of the NAACP. II This Court’s jurisdiction to review the judgment of the Mississippi Supreme Court is, of course, limited to the federal questions necessarily decided by that court. We consider first whether petitioners’ activities are protected in any respect by the Federal Constitution and, if they are, what effect such protection has on a lawsuit of this nature. A The boycott of white merchants at issue in this case took many forms. The boycott was launched at a meeting of a local branch of the NAACP attended by several hundred persons. Its acknowledged purpose was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was supported by speeches and nonviolent picketing. Participants repeatedly encouraged others to join in its cause. Each of these elements of the boycott is a form of speech or conduct that is ordinarily entitled to protection under the First and Fourteenth Amendments. The black citizens named as defendants in this action banded together and collectively expressed their dissatisfaction with a social structure that had denied them rights to equal treatment and respect. As we so recently acknowledged in Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 294, “the practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” We recognized that “by collective effort individuals can make their views known, when, individually, their voices would be faint or lost.” Ibid. In emphasizing “the importance of freedom of association in guaranteeing the right of people to make their voices heard on public issues,” id., at 295, we noted the words of Justice Harlan, writing for the Court in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460: “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” The Chief Justice stated for the Court in Citizens Against Rent Control: “There are, of course, some activities, legal if engaged in by one, yet illegal if performed in concert with others, but political expression is not one of them.” 454 U. S., at 296. The right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected. In De Jonge v. Oregon, 299 U. S. 353, the Court unanimously held that an individual could not be penalized simply for assisting in the conduct of an otherwise lawful meeting held under the auspices of the Communist Party, an organization that advocated “criminal syndicalism.” After reviewing the rights of citizens “to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances,” id., at 364, Chief Justice Hughes, writing for the Court, stated: “It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violation of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.” Id., at 365. Of course, the petitioners in this case did more than assemble peaceably and discuss among themselves their grievances against governmental and business policy. Other elements of the boycott, however, also involved activities ordinarily safeguarded by the First Amendment. In Thornhill v. Alabama, 310 U. S. 88, the Court held that peaceful picketing was entitled to constitutional protection, even though, in that case, the purpose of the picketing “was concededly to advise customers and prospective customers of the relationship existing between the employer and its employees and thereby to induce such customers not to patronize the employer.” Id., at 99. Cf. Chauffeurs v. Newell, 356 U. S. 341. In Edwards v. South Carolina, 372 U. S. 229, we held that a peaceful march and demonstration was protected by the rights of free speech, free assembly, and freedom to petition for a redress of grievances. Speech itself also was used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause, both through public address and through personal solicitation. These elements of the boycott involve speech in its most direct form. In addition, names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper. Petitioners admittedly sought to persuade others to join the boycott through social pressure and the “threat” of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action. As Justice Rutledge, in describing the protection afforded by the First Amendment, explained: “It extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. ‘Free trade in ideas’ means free trade in the opportunity.to persuade to action, not merely to describe facts.” Thomas v. Collins, 323 U. S. 516, 537. In Organization for a Better Austin v. Keefe, 402 U. S. 415, the Court considered the validity of a prior restraint on speech that invaded the “privacy” of the respondent. Petitioner, a racially integrated community organization, charged that respondent, a real estate broker, had engaged in tactics known as “blockbusting” or “panic peddling.” Petitioner asked respondent to sign an agreement that he would not solicit property in their community. When he refused, petitioner distributed leaflets near respondent’s home that were critical of his business practices. A state court enjoined petitioner from distributing the leaflets; an appellate court affirmed on the ground that the alleged activities were coercive and intimidating, rather than informative, and therefore not entitled to First Amendment protection. Id., at 418. This Court reversed. The Chief Justice explained: “This Court has often recognized that the activity of peaceful pamphleteering is a form of communication protected by the First Amendment. E. g., Martin v. City of Struthers, 319 U. S. 141 (1943); Schneider v. State, 308 U. S. 147 (1939); Lovell v. Griffin, 303 U. S. 444 (1938). In sustaining the injunction, however, the Appellate Court was apparently of the view that petitioners’ purpose in distributing their literature was not to inform the public, but to ‘force’ respondent to sign a no-solicitation agreement. The claim that the expressions were intended to exercise a coercive impact on respondent does not remove them from the reach of the First Amendment. Petitioners plainly intended to influence respondent’s conduct by their activities; this is not fundamentally different from the function of a newspaper. See Schneider v. State, supra; Thornhill v. Alabama, 310 U. S. 88 (1940). Petitioners were engaged openly and vigorously in making the public aware of respondent’s real estate practices. Those practices were offensive to them, as the views and practices of petitioners are no doubt offensive to others. But so long as the means are peaceful, the communication need not meet standards of acceptability.” Id., at 419. In dissolving the prior restraint, the Court recognized that “offensive” and “coercive” speech was nevertheless protected by the First Amendment. In sum, the boycott clearly involved constitutionally protected activity. The established elements of speech, assembly, association, and petition, “though not identical, are inseparable.” Thomas v. Collins, supra, at 530. Through exercise of these First Amendment rights, petitioners sought to bring about political, social, and economic change. Through speech, assembly, and petition — rather than through riot or revolution — petitioners sought to change a social order that had consistently treated them as second-class citizens. The presence of protected activity, however, does not end the relevant constitutional inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may be justified in certain narrowly defined instances. See United States v. O’Brien, 391 U. S. 367. A nonviolent and totally voluntary boycott may have a disruptive effect on local economic conditions. This Court has recognized the strong governmental interest in certain forms of economic regulation, even though such regulation may have an incidental effect on rights of speech and association. See Giboney v. Empire Storage & Ice Co., 336 U. S. 490; NLRB v. Retail Store Employees, 447 U. S. 607. The right of.business entities to “associate” to suppress competition may be curtailed. National Society of Professional Engineers v. United States, 435 U. S. 679. Unfair trade practices may be restricted. Secondary boycotts and picketing by labor unions may be prohibited, as part of “Congress’ striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife.” NLRB v. Retail Store Employees, supra, at 617-618 (Blackmun, J., concurring in part). See Longshoremen v. Allied International, Inc., 456 U. S. 212, 222-223, and n. 20. While States have broad power to regulate economic activity, we do not find a comparable right to prohibit peaceful political activity such as that found in the boycott in this case. This Court has recognized that expression on public issues “has always rested on the highest rung of the hierarchy of First Amendment values.” Carey v. Brown, 447 U. S. 455, 467. “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75. There is a “profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270. In Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127, the Court considered whether the Sherman Act prohibited a publicity campaign waged by railroads against the trucking industry that was designed to foster the adoption of laws destructive of the trucking business, to create an atmosphere of distaste for truckers among the general public, and to impair the relationships existing between truckers and their customers. Noting that the “right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms,” the Court held that the Sherman Act did not proscribe the publicity campaign. Id., at 137-138. The Court stated that it could not see how an intent to influence legislation to destroy the truckers as competitors “could transform conduct otherwise lawful into a violation of the Sherman Act.” Id., at 138-139. Noting that the right of the people to petition their representatives in government “cannot properly be made to depend on their intent in doing so,” the Court held that “at least insofar as the railroads’ campaign was directed toward obtaining governmental action, its legality was not at all affected by any anticompetitive purpose it may have had.” Id., at 139-140. This conclusion was not changed by the fact that the railroads’ anticompetitive purpose produced an anti-competitive effect; the Court rejected the truckers’ Sherman Act claim despite the fact that “the truckers sustained some direct injury as an incidental effect of the railroads’ campaign to influence governmental action.” Id., at 143. It is not disputed that a major purpose of the boycott in this case was to influence governmental action. Like the railroads in Noerr, the petitioners certainly foresaw — and directly intended — that the merchants would sustain economic injury as a result of their campaign. Unlike the railroads in that case, however, the purpose of petitioners’ campaign was not to destroy legitimate competition. Petitioners sought to vindicate rights of equality and of freedom that lie at the heart of the Fourteenth Amendment itself. The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself. In upholding an injunction against the state supersedeas bonding requirement in this case, Judge Ainsworth of the Court of Appeals for the Fifth Circuit cogently stated: “At the heart of the Chancery Court’s opinion lies the belief that the mere organization of the boycott and every activity undertaken in support thereof could be subject to judicial prohibition under state law. This view accords insufficient weight to the First Amendment’s protection of political speech and association. There is no suggestion that the NAACP, MAP or the individual defendants were in competition with the white businesses or that the boycott arose from parochial economic interests. On the contrary, the boycott grew out of a racial dispute with the white merchants and city government of Port Gibson and all of the picketing, speeches, and other communication associated with the boycott were directed to the elimination of racial discrimination in the town. This differentiates this case from a boycott organized for economic ends, for speech to protest racial discrimination is essential political speech lying at the core of the First Amendment.” Henry v. First National Bank of Clarksdale, 595 F. 2d 291, 303 (1979) (footnote omitted). We hold that the nonviolent elements of petitioners’ activities are entitled to the protection of the First Amendment. B The Mississippi Supreme Court did not sustain the chancellor’s imposition of liability on a theory that state law prohibited a nonviolent, politically motivated boycott. The fact that such activity is constitutionally protected, however, imposes a special obligation on this Court to examine critically the basis on which liability was imposed. In particular, we consider here the effect of our holding that much of petitioners’ conduct was constitutionally protected on the ability of the State to impose liability for elements of the boycott that were not so protected. The First Amendment does not protect violence. “Certainly violence has no sanctuary in the First Amendment, and the use of weapons, gunpowder, and gasoline may not constitutionally masquerade under the guise of ‘advocacy.’” Samuels v. Mackell Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_casetyp1_7-3-4	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - bankruptcy, antitrust, securities". Alfred P. CARLTON, Jr., Trustee in Bankruptcy as successor-in-interest to the debtor, Firstcorp, Inc., Plaintiff-Appellant, Office of Thrift Supervision, Plaintiff-Appellee, v. FIRSTCORP, INCORPORATED, Defendant-Appellant. No. 91-1694. United States Court of Appeals, Fourth Circuit. Argued March 3, 1992. Decided June 2, 1992. As Amended June 9 and Aug. 12, 1992. Lacy H. Reaves, Poyner & Spruill, Raleigh, N.C. (Beth R. Fleishman, Poyner & Spruill, Raleigh, N.C., David G. Epstein, King & Spaulding, Atlanta, Ga., Alfred P. Carlton, Mark D. Martin, McNair Law Firm, Raleigh, N.C., on brief), for appellant. Harvey Alan Levin, Office of Thrift Supervision, Washington, D.C. (Ivana Teran-go, on brief), for appellee. Before SPROUSE, Circuit Judge, KISER, District Judge for the Western District of Virginia, sitting by designation, and BLATT, Senior District Judge for the District of South Carolina, sitting by designation. OPINION SPROUSE, Circuit Judge: We are asked to decide whether regulatory action of the Office of Thrift Supervision (OTS) is precluded by bankruptcy’s automatic stay provision, 11 U.S.C. § 362, after a thrift holding company has filed for Chapter 11 protection in bankruptcy. The district court, reversing a contrary ruling by the bankruptcy court, held that a provision of the Financial Institutions Supervisory Act of 1966, 12 U.S.C. § 1818(i)(l) et seq., superseded bankruptcy’s automatic stay, and prevented it from applying to ongoing administrative proceedings and a temporary cease and desist order issued by the OTS against the thrift organization. We affirm. I Firstcorp, Inc., headquartered in North Carolina, is a bankrupt savings and loan holding company engaged in a struggle with its federal regulator, the OTS. Its problems arise from its dual ownership of the First Federal Savings and Loan Association of Durham (Durham), which is financially sound, and the First Federal Savings and Loan Association of Raleigh (Raleigh) which has been placed in a federal receivership as a result of its continued insolvency. In 1985, Firstcorp acquired Raleigh. At that time, the Federal Home Loan Bank Board (FHLBB) was the statutorily designated regulator, and holding companies were required to obtain its approval before acquiring or disposing of savings and loan subsidiaries. The FHLBB approved the acquisition of Raleigh but conditioned the approval on a commitment by Firstcorp to maintain the net worth of the subsidiary at appropriate levels. To accomplish this,' after obtaining the money from a public offering of Firstcorp securities, Firstcorp, in November and December 1985, infused $13.4 million into Raleigh. In 1987, Firstcorp acquired Durham and operated both thrifts until late 1990. Although Durham so. far has managed to weather the savings and loan crisis, Raleigh deteriorated rapidly in 1990. During the second half of 1990, its losses increased' and it became insolvent. Because of Raleigh’s insolvency, the OTS (the successor to the Federal Home Loan Bank Board) entered the picture. It placed Raleigh into a federal receivership and charged Firstcorp with responsibility for $45 million required to rejuvenate the financially distressed institution. The Financial Institutions Supervisory Act of 1966, 12 U.S.C. § 1818 et seq., empowers the OTS to supervise thrift holding companies. Pursuant to that authority, the OTS ordered Firstcorp to take various steps which would effectively decrease the size of Raleigh’s insolvency. It issued a temporary cease and desist order instructing Firstcorp to buttress Raleigh’s balance sheet by transferring immediately its stock in Durham to a subsidiary of Raleigh. The temporary order also requires Firstcorp to cancel and return two capital notes to Raleigh, which Firstcorp received from Raleigh in exchange for the 1987 capital infusion of $13.4 million. OTS served the temporary cease and desist order on Firstcorp on November 30, 1990, accompanied by a notice charging Firstcorp with committing an “unsafe and unsound practice” by failing to maintain the net worth of Raleigh in accordance with the requirements of the resolution authorizing the Raleigh acquisition. See 12 U.S.C. § 1818(b)(1) and (c). With the Notice of Charges, the OTS initiated an internal OTS administrative proceeding designed to result in a final cease and desist order. Title 12 U.S.C. § 1818(c)(2) permits holding companies aggrieved by a temporary cease and desist order to seek an injunction in district court to suspend enforcement of the temporary order until a final order results. On December 4, 1990, Firstcorp responded to the OTS action by invoking that provision. It filed a complaint and an application for a temporary restraining order to stay enforcement of the temporary order in the district court for the Eastern District of North Carolina. The following day, Firstcorp opened a second front — filing for protection under chapter 11 of the Bankruptcy Code in the Eastern District bankruptcy court. Two days later on December 7, 1990, Firstcorp sought further protection from the OTS, moving the bankruptcy court for an order confirming that both the internal OTS administrative proceedings and the temporary cease and desist order were suspended by the automatic stay provisions of 11 U.S.C. § 362. At this juncture, Firstcorp on the one hand and the OTS, its regulatory adversary, on the other, moved and counter-moved with some rapidity. On this same day, December 7, the OTS declared Raleigh insolvent, placed it into receivership, and appointed the Resolution Trust Corporation as its receiver. The OTS then immediately chartered a new savings and loan, First Federal Savings Association of Raleigh, which purchased the assets and assumed the deposit and other liabilities of Raleigh. As a result of the OTS action, Raleigh no longer operates as a thrift; it is in receivership. After filing its action for an injunction in the district court and requesting confirmation of the automatic stay in the bankruptcy court, Firstcorp filed a third request for relief against the OTS on December 11, 1990, this time again in the bankruptcy court. Firstcorp’s latest action took the form of a complaint against the OTS and an application for temporary and permanent injunctive relief under 11 U.S.C. § 105(a). The bankruptcy court expedited its consideration of Firstcorp’s twin bankruptcy requests for relief. After conducting a hearing on December 14, 1990, it issued a written opinion and order on December 18, 1990, holding that the automatic stay applied to both the ongoing OTS proceeding and to the temporary order. In its opinion, the bankruptcy court indicated that a ruling on Firstcorp’s request for injunctive relief was unnecessary because of the application of the automatic stay. In re Firstcorp, Inc., 122 B.R. 484 (Bkrtcy.E.D.N.C.1990). Nevertheless, Firstcorp obtained an order from the district court which stayed the district court action. See Firstcorp, Inc. v. Office of Thrift Supervision, No. 90-721-CIV-5-BO (E.D.N.C. February 5, 1991). OTS appealed the bankruptcy court’s ruling that the automatic stay provision applied to its proceedings. The district court reversed the decision of the bankruptcy court, holding that the automatic stay applied neither to the administrative proceeding nor to the temporary order. In re Firstcorp, Inc., 129 B.R. 450 (E.D.N.C.1991). Firstcorp, in turn, appeals to this court. II While this appeal was pending, the United States Supreme Court decided Board of Governors of the Federal Reserve v. MCorp Financial, Inc., — U.S.-, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). It interpreted language in 12 U.S.C. § 1818(i)(l) (discussed below) to preclude the automatic stay provision of bankruptcy from applying to an administrative proceeding of the Federal Reserve Board involving a bankrupt bank holding company. Correctly recognizing that a major part of its appeal is now controlled by MCorp, Firstcorp now abandons its claim that the automatic stay applies to the internal administrative proceedings of the OTS. It continues to argue, however, that the automatic stay applies to the temporary cease and desist order issued by the OTS. It argues alternatively for a remand to the bankruptcy court so that the bankruptcy court may consider Firstcorp’s request for the putative injunctive relief provided by section 105(a). A Title 12 U.S.C. § 1818 establishes three mechanisms for judicial oversight of OTS orders. First, section 1818(c)(2) provides that, within ten days after service of a temporary cease and desist order, a holding company may seek an injunction in district court restraining enforcement of the order pending completion of the related administrative proceeding. Second, section 1818(h) authorizes the courts of appeals to review final cease and desist orders on the application of an aggrieved party. Finally, section 1818(i)(l) empowers the OTS to apply to the district court for enforcement of any outstanding order, whether temporary or final. Section 1818(i)(l) provides further that “except as otherwise provided in this section no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this section, or to review, modify, suspend, terminate, or set aside any such notice or order.” In MCorp, the Supreme Court interpreted that language to preclude the application of the automatic stay to administrative proceedings of the Federal Reserve Board. MCorp involved two ongoing administrative proceedings at the Federal Reserve Board. One charged MCorp with violating the Board’s “source of strength” regulation, 12 C.F.R. § 225.4(a)(1). The other charged MCorp with violating section 23A of the Federal Reserve Act, 12 U.S.C. § 371c, which imposes various restrictions on bank holding companies. In MCorp, however, there was no issue concerning application of the automatic stay to a temporary cease and desist order. Although three temporary cease and desist orders had been issued by the Board against MCorp in that case, they were not involved in the Supreme Court proceeding. See MCorp, supra at-n. 6, 112 S.Ct. at 462 n. 6, 116 L.Ed.2d at 364 n. 6 (“We address only MCorp’s effort to enjoin the Board’s administrative proceedings and express no opinion on the continuing vitality or validity of any of the temporary cease- and-desist orders.”). We think that the Supreme Court’s reasoning in MCorp, that the automatic stay does not apply to internal administrative proceedings, applies equally to temporary cease and desist orders of regulatory agencies in these circumstances. Section 1818(i)(l)’s relevant language is “no court shall have jurisdiction to affect ... enforcement of any notice or order under this section, or to ... suspend ... any such notice or order.” Firstcorp contends that the temporary order can be distinguished from ongoing administrative proceedings because the order requires Firstcorp to immediately transfer assets of the bankruptcy estate, and that this difference justifies application of the automatic stay to the temporary order. We are unpersuaded. No language in the automatic stay provision, 11 U.S.C. § 362, or in 12 U.S.C. § 1818, provides a basis for such a distinction. Section 1818(h) authorizes courts of appeals to review final orders, and section 1818(i)(l) empowers the OTS to apply to district court for the enforcement of any outstanding temporary or permanent orders. These enforcement provisions present a unified regulatory scheme which under MCorp is free from the intrusion of bankruptcy’s automatic stay. Similarly, section 1818(c)(2), which allows holding companies to obtain injunctive relief from a temporary cease and desist order, complements the statutory structure authorizing the regulatory agency to issue and enforce such orders and provides a mechanism for challenge by holding companies. In the absence of legislative history to the contrary, it seems clear to us that by devising a comprehensive scheme governing the oversight of financial institutions, from administrative control through judicial review of the administrative agency’s actions, and by explicitly making the scheme exclusive, Congress intended to exclude other methods of interfering with the regulatory action. We, therefore, affirm the district court's ruling that the automatic stay does not apply to the temporary order. B In view of the above, the judgment of the district court is affirmed, but remanded for appropriate action on Firstcorp’s pending application for an injunction. We leave to the district court the initial determination of whether to resolve Firstcorp’s application for an injunction or to remand it to the Bankruptcy Court. AFFIRMED, BUT REMANDED WITH INSTRUCTIONS. . The OTS was created by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (1989). It replaces the Federal Home Loan Bank Board and is charged with regulating federally-chartered thrifts and thrift holding companies. . See also 12 U.S.C. § 1463, a provision of the Home Owners’ Loan Act of 1933, codified at 12 U.S.C. § 1461, et seq., as amended by the Financial Institutions Reform, Recovery, and Enforcement Act of 1989. . The temporary cease and desist order directs Firstcorp to: immediately upon receipt of this Order, extinguish and cancel the capital notes from First of Raleigh and the accrued interest receivable thereon and return the canceled instruments to First of Raleigh as partial satisfaction of its capital maintenance obligation.... Firstcorp shall immediately transfer all of its ownership interests in First of Durham to [one of the wholly-owned subsidiaries of] First of Raleigh ... in partial satisfaction of its capital maintenance obligation. The temporary cease and desist order also directs Firstcorp not to engage, directly or indirectly, in transactions with Raleigh or Durham without prior OTS approval. It instructs Firstcorp not to transfer or pledge any of its assets without OTS consent, and to use its best efforts to meet the minimum capital requirements of Raleigh. . 11 U.S.C. § 105(a) provides: The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. This grant of authority to bankruptcy courts includes the power to enjoin the continuation of ongoing judicial and administrative proceedings which are excepted from the automatic stay. See, e.g., Browning v. Navarro, 743 F.2d 1069, 1084 (5th Cir.1984). . Because we conclude that § 1818(i)(l) prevents application of the automatic stay, we need not reach, and express no opinion on, the OTS’s alternative argument that the temporary order falls within the § 362(b)(4) and (5) exceptions to the automatic stay. Question: What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? A. bankruptcy - private individual (e.g., chapter 7) B. bankruptcy - business reorganization (e.g., chapter 11) C. other bankruptcy D. antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman) E. antitrust - brought by government F. regulation of, or opposition to mergers on other than anti-trust grounds G. securities - conflicts between private parties (including corporations) H. government regulation of securities Answer:
songer_genapel1	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. CITY AND COUNTY OF SAN FRANCISCO v. TRANSBAY CONST. CO. No. 10168. Circuit Court of Appeals, Ninth Circuit. March 19, 1943. Rehearing Denied June 1, 1943. John J. O’Toole, City Atty., and Dion R. Holm and Henry Heidelberg, Deputy City Attys., all of San Francisco, Cal. (Maurice E. Harrison, of San Francisco, Cal., of counsel), for appellant. Samuel S. Stevens and Heller, Ehrman, White & McAuliffe, all of San Francisco, Cal. (Sidney M. Ehrman, of San Francisco, Cal., of counsel), for appellee. Before GARRECHT, HANEY, and HEADY, Circuit Judges. HEADY, Circuit Judge. This suit involves a contract between Transbay Construction Company and the City of San Francisco for the elevation of the O’Shaughnessy Dam, a structure erected by the city a number of years ago on the Tuolumne River in Yosemite National Park. Jurisdiction is conferred by diversity of citizenship. As originally constructed, the dam was of the arched gravity type with a height of 226 feet above stream bed and a length of 600 feet across the canyon through which the Tuolumne flows. The city desired to raise the height of the dam 85 feet. On December 7, 1934, proposals to' construct the addition were invited. On January 24, 1935, Transbay submitted its bid, which, being the lowest, was accepted. The bid was on the basis of unit prices covering numerous items, much the largest of these being for concrete and cement. A substantial but smaller item was that of excavation for the dam foundation. Upon the award to Transbay in April 1935, a contract was entered into between it and the city. We need mention but a few of the provisions of this exhaustive contract and of the specifications which form part of it. In the information for bidders, which was part of the contract, it was required that the bidder “inform himself by careful personal examination” and by such other means as he might think proper, of the actual conditions and requirements of the work and as to any unusual difficulties that might be encountered in its prosecution. It was stated that the amount of work to be done under each item had been preliminarily estimated, the estimate to' be used as a basis for comparing bids. The contract provided, however, that in respect of work or materials for which unit prices were prescribed there was no agreement by the city that the amount thereof “will correspond even approximately to this estimate,” the city reserving the right to increase or decrease the amount of any class or portion of the work as in its opinion might be to the city’s interest. The contractor was required to bear all losses resulting to him because the nature of the ground might prove different from that assumed or expected, o>r on account of unforeseen difficulties. It was provided that the contractor should complete all work within 730 days after service of notice to proceed, a penalty of $400 being assessable for each day beyond the period. There were provisions for extensions without penalty in event of unavoidable delay, but the contractor was required to give written notice of such delay and apply for extensions. He was to receive no compensation or damages for delays whether avoidable or unavoidable. The amount of work or, materials included under each item was estimated in a table of estimated quantities, the estimate for the item of excavation for dam foundation being 30,000 cubic yards. The unit price bid for excavation was $2.75 per yard. Costly delays in completing this phase of the work inspired the present litigation. On May 14; 1935, notice was given Transbay to proceed. On July 17 of that year drilling was commenced for the excavation in the canyon walls. On the basis of the preliminary estimate, the excavation work would have been completed by November 1, 1935; but in order to reach a firm foundation further excavation was required by the engineers, ultimately a total of 84,000 cubic yards being removed. The additional excavation was apparently ordered from time to time in piecemeal fashion with the result that the contractor was subjected to very substantial delay, a large part of which we assume could have been avoided by a measure of diligence on the part of the engineers speaking for the city. The vacillating conduct of the engineers in this respect gave rise from time to time to verbal protests on the part of Transbay. The excavation for the foundation was not actually completed until July 25, 1936. , On August 7, 1936, Transbay ^nade written application to the city, under the terms of the contract, for an extension of time. The ground alleged was that unavoidable delays had occurred as the result of the additional excavation. The application stated that “due to the unforeseen condition of the rock, underlying the surface, which was pronounced by the Engineers to be unsatisfactory for the foundation, we were ordered by the Engineers to excavate further.” The application concluded with the statement that the “unavoidable delays between November 1, 1935, and July 25, 1936, total 236 calendar days.” An extension of that number of days was requested “within which to complete” the contract. The extension was granted and Transbay proceeded with the major work of pouring concrete. The latter work had already commenced April 30, 1936. Later on there were two other extensions, each for 90 days, each being granted upon Transbay’s statement that further unavoidable delays had occurred. The contract was completed and accepted by the city on July 1, 1938, at which time Transbay was paid the full unit contract prices, amounting in the aggregate to $3,457,000.69. Meanwhile, on November 25, 1936, Transbay wrote the city protesting against the increased amount of excavation as a departure from the terms of the contract, and stating that it reserved the right to claim additional compensation by reason of the-unreasonable increase. This, it will be noted, was four months after the completion of the excavation work. Because of its bearing on the legal aspects of the case, the letter is copied in full on the margin On October 7, 1938, Transbay filed a claim against the city for $450,464.56 for damages for various delays in completion which were said to have increased overhead costs. These asserted delays consisted of the major one relating to excavation, plus minor delays in grouting. Payment of the claim was refused by the city. The present action was commenced shortly thereafter. The complaint contained three counts or causes of action. The first count was for damages for breach of contract in the amount for which claim had previously been filed as above stated. In a bill of particulars furnished the city the total claim for damages was reduced to $386,227.14. It was alleged in this count that because of the unreasonable increase in the amount of excavation and because of the delay in performance of the contract caused by the city, the plaintiff had been put to additional costs in the maintenance of its plant and equipment, and in such items as interest, insurance, overhead expense, maintenance of roads, etc., for an additional period of approximately one year, to the damage of the plaintiff in the sum mentioned. The second cause of action was for $4,-291,628.28, said to be the reasonable value of labor and materials furnished the city. It was alleged that the city had made partial payment on this account, leaving a balance owing of $834,627.59. The third cause of action was for the same amount, asserted to be owing as the balance of ' “the agreed value” of labor and materials furnished. Thus the first cause of action was predicated on the theory of breach cff contract, whereas the second and third appear to proceed on implied or quasi contract or on the notion that the express contract between the parties had been abrogated or rescinded. On the trial the court denied recovery on the first cause of action because of the failure of Transbay to present its claim for damages within sixty days, as required by § 87 of the city’s charter. This provides that all claims for damages against the city must be presented to the comptroller within sixty days after the occurrence from which it is claimed that damages have arisen. It will be recalled that the project was completed and accepted on July 1, 1938, whereas the claim for damages was not presented until October 7 of that year. Transbay did not claim error in the dismissal of its first cause of action, and has not appealed therefrom. The applicability and binding force of the charter provisions are conceded. See Haigh v. City of Los Angeles, 139 Cal.App. 595, 599, 34 P.2d 779. However, the court, although holding that there was no misrepresentation or bad faith on the part of the city, reached the conclusion that the contract in its entirety should be deemed abrogated and Transbay permitted to recover on a quantum meruit basis. Accordingly the second cause of action was referred to a master to receive evidence of the amount owing as the reasonable value of labor and materials furnished in the course of the entire project. The third count was dismissed. • On the reference, the master determined that Transbay was entitled to the sum of $3,-862,049.12 as the reasonable value of labor and materials, plus a profit of 10% thereon, or a total of $4,248,254.03. Credit was given for the amount already paid, so that the net sum awarded was $791,253.34. The master’s report was approved by the court over the city’s objection. Findings were thereupon made and judgment entered for the amount of the award. This appeal followed. ' The judgment appears unsupported by reason or authority. It is of course arguable, as the city contends, that the delays giving rise to the damage were contingencies provided against in the contract; and that while Transbay became entitled as of right to extensions of time there could be no monetary recovery beyond éxaction of the stipulated unit prices. As to this, however, we need not inquire. We assume for the purpose of decision that the method of performance imposed on the contractor in the respects indicated was so unreasonable as to amount to a breach of contract. The situation of the parties will be considered on that assumption. Thus Transbay might have treated the contract as rescinded, ceased work thereunder, and sued for the value of labor and materials furnished to the date of the breach justifying the rescission. But we agree with Transbay that this was not the only course it might take without waiver of its rights. It might, we think, elect to proceed with the contract, advising the city of its election and reserving its right to claim damages for the unjustifiable delays suffered at the hands of the city. That Transbay in fact elected to pursue the latter course is evidenced. by its going ahead with the main project of raising the dam, by its applications for extensions of time, by its letter of protest, by its claim presented to the city, and by the content of the first count of its bill of complaint. Had the claim for damages been timely presented, we suppose that Transbay would have been entitled to judgment in some amount on its first cause of action. But having proceeded with the contract, Trans-bay was not thereafter at liberty to treat it as nonexistent and recover for the entire job on a cost plus basis. There is no reason whatever for supposing that it was entitled to relief of that kind, since the legitimate losses it sustained were adequately compensable in damages. The suit is governed by local law. The California Civil Code, § 1688, provides that a contract is extinguished by its rescission. Section 1691 of the Civil Code states: “Rescission, when not effected by consent, can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitled him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right * * This statute has been strictly applied by the California courts. Wills v. Porter, 132 Cal. 516, 521, 64 P. 896; Brown v. Domestic Utilities Mfg. Co., 172 Cal. 733, 159 P. 163; see California Farm & Fruit Co. v. Schiappa-Pietra, 151 Cal. 732, 91 P. 593. Transbay does not question the force of the local rule; indeed it does not even claim. to have rescinded. Its position is, that the entire contract should in law be deemed “abrogated” because of “radical changes” brought about in the course of its. performance. Presumably the radical changes have to do with the extensive excavation consuming nearly eight months of time beyond that anticipated. But Trans-bay has not here contended that it was unreasonable for the city to insist upon the excavation of this large yardage. It could not well do so if the plain terms of the contract are to be given any force at all-Its contention is that its costs were unreasonably increased by delays unjustly imposed upon it in the doing of this and one other item of construction. By such an argument we are asked to believe that a. project totally different from that contemplated by the agreement was foisted on the contractor, as though having contracted to. erect one type of structure he was required to build another and different structure The argument has little but its fervor to» recommend it. The authorities on which Transbay chiefly leans are a line of New York cases commencing with Lentilhon v. City of New York, 1905, 102 App.Div. 548, 92 N.Y.S. 897. The leading case in this group is Borough Const. Co. v. City of New York, 1910, 200 N.Y. 149, 93 N.E. 480, 140 Am.St.Rep. 633. The latter decision was cited with approval by an intermediate appellate court of California in Gogo v. Los Angeles County Flood Control Dist., 1941, 45 Cal.App.2d 334, 114 P.2d 65. The doctrine of these cases is that a contractor who is ordered by representatives of a municipality to furnish materials or do work which the former believes are not called for by his contract, may under protest do as directed and subsequently recover damages if he is able to show that the requirement imposed on him was not fairly within his contract. Under such circumstances the contractor may treat the insistence of the municipality as a breach and recover damages based upon the reasonable value of the extra work or materials. These cases are not authority for the proposition that if the contractor chooses to continue, the contract is to be regarded as rescinded or abrogated. The recovery in quantum meruit goes only to the work performed in excess of that called for by the agreement. These decisions represent an enlightened development of the law of contracts. They support recourse to either of the two alternatives heretofore discussed, and which we have assumed were open to appellee; but they lend no color to the notion that the entire contract is for all purposes to be treated as out of the window. The case of Gogo v. Los Angeles County Flood Control Dist., supra, involved a misrepresentation as to the amount and character of work to be required of the contractor. The latter, after discovery of the misrepresentation, continued the work under protest. The court thought that his doing so did not constitute a waiver of the right to recover damages for the misrepresentation. This decision affords no authority for what was done below. Nor does it contain any intimation that if portions of the work have been misrepresented the contractor may elect to continue and subsequently recover for all work on a quantum meruit basis. Other authorities cited by Transbay need not be reviewed. They are substantially in harmony with the cases already analyzed. Reversed. The city’s activities with respect to the Raker Act, 38 Stat.L. 242. waters impounded there are governed by the In the interest of public safety the State Engineer of Dams made requirements in respect of deepening the rock cuts, and in these requirements the city acquiesced. On the basis of the original estimates of quantities the bid was for a total of $3,219,965, or about $238,000 less than the amounts ultimately paid. “November 25, 1936 “Dear Sirs: “Reference is made to the contract entered into between the undersigned, Transbay Construction Company, and the Public Utilities Commission of the City and County of San Francisco for the enlargement of O’Shaughnessy Dam, and to the plans and specifications relating to said contract, and in particular to the estimate of quantities contained in the specifications, which shows the amount of the excavation for the Dam foundation to be 30,000 cubic yards. “Your attention is called to the fact that during the progress of the work, the engineer representing the City and County of San Fi'ancisco has, from time to time, issued orders to the undersigned to. increase the amount of the excavation for the Dam foundation, so that at the-present time the contractor has been required to excavate approximately 85,-000 cubic yards. The increase in the-rock excavation has resulted in a material and substantial departure from the-terms and provisions of the contract entered into between said parties and contemplated to be performed by the undersigned, and because of such additional excavation the cost of said work has been and will be materially and substantially increased, and the undersigned has suffered and will hereafter suffer great and substantial damage and injury by reason, of such increase in the rock excavation. It is impossible at the present time to es— tímate in full the amount of such damage and the additional cost to the undersigned by reason of the change and modification in said contract. “By reason of the foregoing the undersigned respectfully protests against the orders increasing the rock excavation beyond the approximate amount shown on the specifications and takes this opportunity to notify you that it has proceeded and will proceed with the performance of the work required by the plans and specifications which has been and will be done, after such increases in rock excavation were ordered, only under protest. The undersigned further advises you that it has accepted and will accept additional payments, according to the unit prices • specified in the contract and in the specifications for the work to be performed, only under protest, and that in continuing with said work and accepting progress payments from time to time the undersigned does so under protest, and reserves the right to claim additional and further compensation by reason of the unreasonable increase in the rock excavation and the modification of the original contract caused by such increase. “The undersigned further respectfully advises you that it intends to claim all additional compensation to which it may be legally entitled by reason of the modification and change in said contract, both with respect to the work heretofore done and hereafter - to be done by it in connection with the-performance of said contract. “Yours very truly, “Transbay Construction Company, ' “By Ralph T. Keenan.” Grouting was done when the main job was finished and any added expense incident to delay in the performance of this .-work was inconsequential. The damage claimed for delay in grouting was less than $6,000. The court stated that “circumstances unanticipated by the parties made radical changes in the character and amount of the work to be performed under the contract, greatly increasing the expense thereof,” and that “it would be unjust to permit defendant to strictly enforce the contract against plaintiff.” 35 F.Supp. 433, 436. Cf. Salt Lake City v. Smith, 10 Cir., 104 F. 457. Another case in the group is Beckwith v. City of New York, 1912, 148 App.Div. 658, 133 N.Y.S. 202. The rule is subject to the limitation that the question whether the thing required is embraced in the contract must be fairly debatable. For a similar holding see Palmberg v. City of Astoria, 101 Or. 224, 199 P. 630, 16 A.L.R. 1125. 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_district	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". Leonard SAMPLES and Mrs. Mary Samples, Appellants, v. Oscar NANNEY, Appellee. No. 10463. Circuit Court of Appeals, Sixth Circuit. March 15, 1948. Cunningham & Cunningham, of Boone-ville, Miss., for appellants. Harsh & Pierce, of Memphis, Tenn., for appellee. Before HICKS, ALLEN, and MARTIN, Circuit Judges. PER CURIAM. This case was submitted upon the record and briefs; and it appearing that no exception was taken to the charge of the court, and that appellants’ requests for charges which were refused by the court were inapplicable to the facts of the case; and it appearing that the trial court did not abuse its discretion in overruling the motion for new trial; and no reversible error appearing in the record: it is ordered that the judgment of the District Court be, and it hereby is, affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_casetyp1_7-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". GENERAL FINANCE CO. OF PHILADELPHIA, PA., v. COMMISSIONER OF INTERNAL REVENUE. No. 6016. Circuit Court of Appeals, Third Circuit. Sept. 10, 1936. David S. Malis, of Philadelphia, Pa., for petitioner. Frank J. Wideman, Asst. Atty. Gen., Sewall Key and John Mac Hudson, Sp. Assts. to Atty. Gen., and E. W. Pavenstedt and A. F. Prescott, both of Washington, D. C., for respondent. Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges. DAVIS, Circuit Judge. This is an appeal from an order of redetermination by the Board of Tax Appeals which denied the petitioner the' right to deduct, in its income tax returns, net losses sustained in the two years prior to the time when, as a Delaware corporation, it became “domesticated” under the laws of Pennsylvania. In 1921 the petitioner was incorporated in the state of 'Delaware. Its sole office and place of business was in Philadelphia. From 1921 to 1929 the petitioner complied with the statutes; taxing and otherwise, of Pennsylvania dealing with foreign corporations, and filed duplicate returns in Delaware and Pennsylvania. In 1929, to avoid the burdens of this duplication, by appropriate action of the officers, directors, and stockholders, it “domesticated” itself -in Pennsylvania according to the procedure set forth in the statutes of that commonwealth. The corporate capital structure, place of business, officers, directors, and stockholders remained as they had been, and there is no evidence of any change whatever in the powers and privileges that could be exercised. In filing its income tax return for 1930, the petitioner deducted from its income a net loss of $28,808.52 sustained by the Delaware corporation during the years 1928 and 1929. In 1931 the petitioner carried over a loss of $8,228.25. The deductions were claimed under section 117 (b) of the Revenue Act of 1928 (26 U.S.C.A. § 117 note), which reads: “Net Loss as a Deduction. — If, for any taxable year, it appears upon the production of evidence satisfactory to the commissioner that any taxpayer has sustained a net loss, the amount thereof shall be allowed as a deduction in computing the net income of the taxpayer for the succeeding taxable year (hereinafter in this section called ‘second year’), and if such net loss is in excess of such net income (computed without such deduction), the amount of such excess shall be allowed as a deduction in computing the net income for the next succeeding taxable year (hereinafter in this section called ‘third year’) ; the deduction in all cases to be made under regulations prescribed by the Commissioner with the approval of the Secretary.” The commissioner disallowed the above deductions on the ground that the petitioner, having domesticated itself in Pennsylvania, was not the- same taxpayer as the Delaware corporation. The Board of Tax Appeals agreed with this interpretation. Three members of the board, however, dissented from the majority opinion. The dissenting members likened the domestication process to the process of naturalization, and were of the opinion that no change of identity occurred, but merely a change of allegiance. The determination of this question depends upon the statutory requirements of the laws of Pennsylvania relating to the domestication of foreign corporations. The act is entitled, “An Act to authorize foreign corporations to become corporations of Pennsylvania.” Pennsylvania Statutes Annotated, title 15, c. 53. The act provides: “§ 3181. Corporations, created by or under the laws of any other state, doing business in this state * * * may become corporations of this state * * * by preparing, having approved, and recorded, a certificate. * * * Said certificate shall be accompanied by a certificate, under the seal of the corporation, showing the consent of a majority in interest of such corporation to such application for a charter, and to a renunciation of its original charter, and of all privileges not enjoyed by corporations of its class, under the laws of Pennsylvania [this commonweath].” “§ 3182. Acknowledgment and oath; approval and recording of certificates; letters patent. “Said certificates shall be acknowledged by at least three of the directors of said corporation, before the recorder of deeds of the county in which the chief operations are to be carried on, or in which the principal office is situated, and said directors shall also make and subscribe an oath or affirmation before him, to be endorsed on the said certificate, that the statements contained therein are true. The said certificate shall then be produced to the governor of this commonwealth, who shall examine the same, and if he find it to be in proper form, and within the purposes named for corporations of the second class in the said second section of said act of April 29, 1874, before mentioned, he shall approve thereof, and endorse his approval thereon, and direct letters patent to issue, in the usual form, cncorporating said stockholders and their successors into a body politic and corporate in deed and in law, by the name chosen; and the said certificate shall be recorded, in the office of the secretary of the commonwealth, in a book to be by him kept for that purpose, and he shall forthwith furnish the auditor general an abstract therefrom, showing the name, location, amount of capital stock, and name and address of the treasurer of such corporation; the said original certificate, with all its endorsements, shall then be recorded in the office for the recording of deeds in and for the county where the chief operations are to be carried on.” “§ 3183. Rights, powers, property, etc.; suits and claims. From the date of said letters patent said corporation shall be and exist as a corporation of this commonwealth, under the provisions of law regulating corporations of its class and of its charter; and all of the rights, privileges, powers, immunities, lands, property and assets, of whatever kind or character the same may be, possessed and owned by the original corporation, shall vest in, and be owned and enjoyed by, the said corporation so created, as fully and with like effect, as if its original charter had remained in force, save as by general law and said certificate expressly stated otherwise; and all suits, claims and demands by said corporation, in existence at the date of said new charter, shall and may be sued, prosecuted and collected, under the laws governing the said corporation prior to its new charter, and claims and demands of every nature and character in existence at the date of said new charter may be collected from and of said new chartered corporation, as fully and with like effect as if no change had taken place.” The act read as a whole indicates that when the statutory requirements are complied with a new corporation comes into existence. The old charter is abandoned and a new one is created. Section 3183 specification speaks of the “original” and the “new chartered corporation.” This construction is in accord with the opinion of the Attorney General of Pennsylvania found in National Metal Edge Box Co., 30 Pa.C.C. 273. The next question is whether or not the new domesticated corporation is the same taxpayer within the contemplation of section 117 (b) as was the Delaware corporation. The taxpayer has argued that the court should look through form and consider substance. We realize that this is the same economic interest, owned and operated by the same individuals and with the same privileges, powers, and capital structure. However, this case is governed by the rule of law declared in New Colonial Ice Co., Inc., v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348, and California Barrel Company v. Commissioner (C.C.A.) 81 F.(2d) 190. In the former case the contention here made was considered and passed upon by Justice Van Devanter, speaking for the court, as follows, 292 U.S. 435, on page 441, 54 S.Ct. 788, 791, 78 L.Ed. 1348: “We come then to an alternative contention that, * * * the deduction should be allowed because ‘for all practical purposes the new corporation was the same entity as the old one and therefore the same taxpayer.’ This is not in accord with the view on which the stockholders and creditors proceeded when the new company was brought into being.. They deserted the old company and turned to the new one because they regarded it as a distinct corporate entity • and therefore free from difficulties attending the old one. * * * Be this as it may, we are of opinion that in law and in fact the two corporations were not identical but distinct. * * * Thus the contention * * * has no basis, unless * * * the fact that the stockholders of the two corporations were substantially the same constitutes such a basis. “As a general rule a corporation and its stockholders are deemed separate entities and this is true in respect of tax problems. * * * The separate entity may be disregarded in exceptional situations. * * * But in this case we find no such exceptional situation — nothing taking it out of the general rule.” The order of redetermination of the Board of Tax Appeals is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
sc_casesource	026	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. HEINTZ et al. v. JENKINS No. 94-367. Argued February 21, 1995 Decided April 18, 1995 Breyek, J., delivered the opinion for a unanimous Court. George W. Spellmire argued the cause for petitioners. With him on the briefs were D. Kendall Griffith, Bruce L. Carmen, and David M. Schultz. Daniel A. Edelman argued the cause for respondent. With him on the brief were Joanne S. Faulkner and Richard J. Rubin Briefs of amici curiae urging reversal were filed for the American Bar Association by George E. Bushnell; for the Commercial Law League of America by Manuel H. Newburger and Barbara M. Barron; and for the National Association of Retail Collection Attorneys by Ronald S. Canter and Rosalie B. Levinson. Robert J. Hobbs, Joan S. Wise, Deborah M. Zuckerman, and Alan Alop filed a brief for the National Consumer Law Center, Inc., et al. as amici curiae urging affirmance. Andrew Rosen filed a brief for Sherry Ann Edwards as amicus curiae. Justice Breyer delivered the opinion of the Court. The issue before us is whether the term “debt collector” in the Fair Debt Collection Practices Act, 91 Stat. 874, 15 U. S. C. §§ 1692-1692o (1988 ed. and Supp. V), applies to a lawyer who “regularly,” through litigation, tries to collect consumer debts. The Court of Appeals for the Seventh Circuit held that it does. We agree with the Seventh Circuit and we affirm its judgment. The Fair Debt Collection Practices Act prohibits “debt collectorfs]” from making false or misleading representations and from engaging in various abusive and unfair practices. The Act says, for example, that a “debt collector” may not use violence, obscenity, or repeated annoying phone calls, 15 U. S. C. § 1692d; may not falsely represent “the character, amount, or legal status of any debt,” § 1692e(2)(A); and may not use various “unfair or unconscionable means to collect or attempt to collect” a consumer debt, § 1692f. Among other things, the Act sets out rules that a debt collector must follow for “acquiring location information” about the debtor, § 1692b; communicating about the debtor (and the debt) with third parties, § 1692c(b); and bringing “[l]egal actions,” § 1692i. The Act imposes upon “debt collector[s]” who violate its provisions (specifically described) “[c]ivil liability” to those whom they, e. g., harass, mislead, or treat unfairly. § 1692k. The Act also authorizes the Federal Trade Commission (FTC) to enforce its provisions. § 1692Z(a). The Act’s definition of the term “debt collector” includes a person “who regularly collects or attempts to collect, directly or indirectly, debts owed [to]... another.” § 1692a(6). And, it limits “debt” to consumer debt, i. e., debts “arising out of . . . transaction^]” that “are primarily for personal, family, or household purposes.” § 1692a(5). The plaintiff in this case, Darlene Jenkins, borrowed money from the Gainer Bank in order to buy a car. She defaulted on her loan. The bank’s law firm then sued Jenkins in state court to recover the balance due. As part of an effort to settle the suit, a lawyer with that law firm, George Heintz, wrote to Jenkins’ lawyer. His letter, in listing the amount she owed under the loan agreement, included $4,173 owed for insurance, bought by the bank because she had not kept the car insured as she had promised to do. Jenkins then brought this Fair Debt Collection Practices Act suit against Heintz and his firm. She claimed that Heintz’s letter violated the Act’s prohibitions against trying to collect an amount not “authorized by the agreement creating the debt,” § 1692f(l), and against making a “false representation of . . . the . . . amount ... of any debt,” § 1692e(2)(A). The loan agreement, she conceded, required her to keep the car insured “ ‘against loss or damage’ ” and permitted the bank to buy such insurance to protect the car should she fail to do so. App. to Pet. for Cert. 17. But, she said, the $4,173 substitute policy was not the kind of policy the loan agreement had in mind, for it insured the bank not only against “loss or damage” but also against her failure to repay the bank’s car loan. Hence, Heintz’s “representation” about the “amount” of her “debt” was “false”; amounted to an effort to collect an “amount” not “authorized” by the loan agreement; and thus violated the Act. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the District Court dismissed Jenkins’ Fair Debt Collection lawsuit for failure to state a claim. The court held that the Act does not apply to lawyers engaging in litigation. However, the Court of Appeals for the Seventh Circuit reversed the District Court’s judgment, interpreting the Act to apply to litigating lawyers. 25 F. 3d 536 (1994). The Seventh Circuit’s view in this respect conflicts with that of the Sixth Circuit. See Green v. Hocking, 9 F. 3d 18 (1993) (per curiam). We granted certiorari to resolve this conflict. 513 U. S. 959 (1994). And, as we have said, we conclude that the Seventh Circuit is correct. The Act does apply to lawyers engaged in litigation. There are two rather strong reasons for believing that the Act applies to the litigating activities of lawyers. First, the Act defines the “debt collector[s]” to whom it applies as including those who “regularly collec[t] or attempft] to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another.” § 1692a(6). In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly “attempts” to “collect” those consumer debts. See, e. g., Black’s Law Dictionary 263 (6th ed. 1990) (“To collect a debt or claim is to obtain payment or liquidation of it, either by personal solicitation or legal proceedings”). Second, in 1977, Congress enacted an earlier version of this statute, which contained an express exemption for lawyers. That exemption said that the term “debt collector” did not include “any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client.” Pub. L. 95-109, § 803(6)(F), 91 Stat. 874, 875. In 1986, however, Congress repealed this exemption in its entirety, Pub. L. 99-361, 100 Stat. 768, without creating a narrower, litigation-related, exemption to fill the void. Without more, then, one would think that Congress intended that lawyers be subject to the Act whenever they meet the general “debt collector” definition. Heintz argues that we should nonetheless read the statute as containing an implied exemption for those debt-collecting activities of lawyers that consist of litigating (including, he assumes, settlement efforts). He relies primarily on three arguments. First, Heintz argues that many of the Act’s requirements, if applied directly to litigating activities, will create harmfully anomalous results that Congress simply could not have intended. We address this argument in light of the fact that, when Congress first wrote the Act’s substantive provisions, it had for the most part exempted litigating attorneys from the Act’s coverage; that, when Congress later repealed the attorney exemption, it did not revisit the wording of these substantive provisions; and that, for these reasons, some awkwardness is understandable. Particularly when read in this light, we find Heintz’s argument unconvincing. Many of Heintz’s “anomalies” are not particularly anomalous. For example, the Sixth Circuit pointed to § 1692e(5), which forbids a “debt collector” to make any “threat to take action that cannot legally be taken.” The court reasoned that, were the Act to apply to litigating activities, this provision automatically would make liable any litigating lawyer who brought, and then lost, a claim against a debtor. Green, supra, at 21. But, the Act says explicitly that a “debt collector” may not be held liable if he “shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” § 1692k(c). Thus, even if we were to assume that the suggested reading of § 1692e(5) is correct, we would not find the result so absurd as to warrant implying an exemption for litigating lawyers. In any event, the assumption would seem unnecessary, for we do not see how the fact that a lawsuit turns out ultimately to be unsuccessful could, by itself, make the bringing of it an “action that cannot legally be taken.” The remaining significant “anomalies” similarly depend for their persuasive force upon readings that courts seem unlikely to endorse. For example, Heintz’s strongest “anomaly” argument focuses upon the Act’s provisions governing “[cjommunication in connection with debt collection.” § 1692c. One of those provisions requires a “debt collector” not to “communicate further” with a consumer who “notifies” the “debt collector” that he or she “refuses to pay” or wishes the debt collector to “cease further communication.” § 1692c(c). In light of this provision, asks Heintz, how can an attorney file a lawsuit against (and thereby communicate with) a nonconsenting consumer or file a motion for summary judgment against that consumer? We agree with Heintz that it would be odd if the Act empowered a debt-owing consumer to stop the “communications” inherent in an ordinary lawsuit and thereby cause an ordinary debt-collecting lawsuit to grind to a halt. But, it is not necessary to read § 1692c(c) in that way — if only because that provision has exceptions that permit communications “to notify the consumer that the debt collector or creditor may invoke” or “intends to invoke” a “specified remedy” (of a kind “ordinarily invoked by [the] debt collector or creditor”). §§ 1692c(c)(2), (3). Courts can read these exceptions, plausibly, to imply that they authorize the actual invocation of the remedy that the collector “intends to invoke.” The language permits such a reading, for an ordinary court-related document does, in fact, “notify” its recipient that the creditor may “invoke” a judicial remedy. Moreover, the interpretation is consistent with the statute’s apparent objective of preserving creditors’ judicial remedies. We need not authoritatively interpret the Act’s conduct-regulating provisions now, however. Rather, we rest our conclusions upon the fact that it is easier to read § 1692c(c) as containing some such additional, implicit, exception than to believe that Congress intended, silently and implicitly, to create a far broader exception, for all litigating attorneys, from the Act itself. Second, Heintz points to a statement of Congressman Frank Annunzio, one of the sponsors of the 1986 amendment that removed from the Act the language creating a blanket exemption for lawyers. Representative Annunzio stated that, despite the exemption’s removal, the Act still would not apply to lawyers’ litigating activities. Representative Annunzio said that the Act “regulates debt collection, not the practice of law. Congress repealed the attorney exemption to the act, not because of attorney[s’] conduct in the courtroom, but because of their conduct in the backroom. Only collection activities, not legal activities, are covered by the act.... The act applies to attorneys when they are collecting debts, not when they are performing tasks of a legal nature. . . . The act only regulates the conduct of debt collectors, it does not prevent creditors, through their attorneys, from pursuing any legal remedies available to them.” 132 Cong. Rec. 30842 (1986). This statement, however, does not persuade us. For one thing, the plain language of the Act itself says nothing about retaining the exemption in respect to litigation. The line the statement seeks to draw between “legal” activities and “debt collection” activities was not necessarily apparent to those who debated the legislation, for litigating, at first blush, seems simply one way of collecting a debt. For another thing, when Congress considered the Act, other Congressmen expressed fear that repeal would limit lawyers’ “ability to contact third parties in order to facilitate settlements” and “could very easily interfere with a client’s right to pursue judicial remedies.” H. R. Rep. No. 99-405, p. 11 (1985) (dissenting views of Rep. Hiler). They proposed alternative language designed to keep litigation activities outside the Act’s scope, but that language was not enacted. Ibid. Further, Congressman Annunzio made his statement not during the legislative process, but after the statute became law. It therefore is not a statement upon which other legislators might have relied in voting for or against the Act, but it simply represents the views of one informed person on an issue about which others may (or may not) have thought differently. Finally, Heintz points to a “Commentary” on the Act by the FTC’s staff. It says: “Attorneys or law firms that engage in traditional debt collection activities (sending dunning letters, making collection calls to consumers) are covered by the [Act], but those whose practice is limited to legal activities are not covered.” Federal Trade Commission — Statements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 50100 (1988) (emphasis added; footnote omitted). We cannot give conclusive weight to this statement. The Commentary of which this statement is a part says that it “is not binding on the Commission or the public.” Id., at 50101. More importantly, we find nothing either in the Act or elsewhere indicating that Congress intended to authorize the FTC to create this exception from the Act’s coverage— an exception that, for the reasons we have set forth above, falls outside the range of reasonable interpretations of the Act’s express language. See, e. g., Brown v. Gardner, 513 U. S. 115, 120-122 (1994); see also Fox v. Citicorp Credit Servs., Inc., 15 F. 3d 1507, 1513 (CA9 1994) (FTC staff’s statement conflicts with Act’s plain language and is therefore not entitled to deference); Scott v. Jones, 964 F. 2d 314, 317 (CA4 1992) (same). For these reasons, we agree with the Seventh Circuit that the Act applies to attorneys who “regularly” engage in consumer-debt-collection activity, even when that activity consists of litigation. Its judgment is therefore Affirmed. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. 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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. 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California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). ELLIOTT v. EMPIRE NATURAL GAS CO. et al. (Circuit Court of Appeals, Eighth Circuit. March 7, 1925.) No. 6413. 1. Courts ©=280 — Circuit Court of Appeals should deny jurisdiction as to itself and court from which record comes, if it is apparent jurisdictional amount is not involved. Circuit Court of Appeals should deny jurisdiction as to itself and court from which record comes, if it is apparent from whole record and nature of case that jurisdictional amount is not involved. 2. Courts ©=329 — General allegation that amount in controversy exceeds jurisdictional requirement is insufficient, where record indicates the contrary. Allegation that amount in controversy exceeds jurisdictional requirement is insufficient to establish jurisdiction, where it is apparent from record that such amount is not involved. 3. Courts ©=328(l) — “Value of matter in controversy,” within statute fixing jurisdiction, defined. “Value of matter in controversy,” within Judicial Code, § 24 (Comp. St. § 991), means pecuniary result to either party which judgment entered m case would directly produce, either at once or in future. I Ed. Note. — For other definitions, see Words and Phrases, Value in Controversy.] 4. Courts ©=328(4) — Value of separable rights of one person against many, or many against one, may not be added1 together to bring amount in controversy within jurisdictional requirements. Where right, value of which is test of jurisdiction, under Judicial Code, § 24 (Comp. St. § 991), exists in favor of many persons as against one, or in favor of one against many, and is in its nature separable, then the separable values cannot be added together to bring the value of the matter in controversy, within jurisdictional requirements. 5. Courts ©=328(I) — Amount or value of right in dispute cannot be augmented for jurisdictional purposes by collateral effect a judgment may produce. Amount or value of right in dispute cannot be augmented for jurisdictional purposes by collateral effect judgment in ease may produce. 6. Courts ©=328(4) — Suit to enjoin gas company from cutting off plaintiff’s supply, or attempting by other coercive means to collect sum of $16, held not to involve jurisdictional amount. Suit'against gas company to enjoin it from cutting off plaintiff’s gas supply, or from attempting by other coercive means to collect $16 claimed by virtue of order of state Public Utilities Commission, held not to involve jurisdictional amount, under Judicial Code, § 24 (Comp. St. § 991), though judgment might have far-reaching collateral effect on defendant’s claims against persons other than plaintiff. Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Suit by Earl C. Elliott against the Empire Natural Gas Company and others. Decree for defendants, and plaintiff appeals. Reversed, and case remanded, with instructions to remand same to stale court. Sec, also, 298 F. 299. Robert C. Foulston and George Siefkin, both of Wichita, Kan., for appellant. H. 0. Caster and Robert D. Garver, both of Bartlesville, Okl., for appellee Empire Natural Gas Co. Before SANBORN and KENYON, Circuit Judges, and BOOTH, District Judge. KENYON, Circuit Judge. This ease is here on appeal from the District Court of the United States for the District of Kansas. Appellant brought action in the district court of Sedgwick county, Kan., against Empire Natural Gas Company, a Delaware corporation, and Kansas Gas & Electric Company, a West Virginia corporation, appellees here, asking an injunction restraining them from cutting off the supply of natural gas which appellant was receiving from them, and from attempting to collect by means of such coercive methods the sum of $16, which appellee companies claimed to be due by virtue of a certain order- made December 22, 1919, by the Public Utilities Commission for the state of Kansas, which permitted them to charge $2 per month per customer from January 1, 1920, in addition to rates theretofore charged for natural gas for such period as hereinafter referred to. At the time the order was made by the Publie Utilities Commission eases were pending in this court on appeal involving certain rights of the Wichita Natural Gas Company, predecessor in interest of Kansas Gas & Electric Company in the matter of rates for gas furnished to the inhabitants of various cities of Kansas, and the order provided that, if the said Wichita Natural Gas Company should prevail in these appeals, the local distributing companies could in eaeh city charge and collect from each domestie consumer of gas therein, in addition to the regular rates, the sum of $2 every month from January 1, 1920, to the 1st day of the month following the determination of appeals. Without reviewing such litigation, it is sufficient to say that the same resulted in favor of the Wichita Natural Gas Company; decisions being rendered in this court on or about August 17, 1920. Appellant was notified on June 12, 1922, that he was indebted to appellees for the use of the Empire Natural Gas Company in the sum of $16, being the $2 per month provided for by the order of the Kansas Public Utilities Commission for a period of 8 months, and that unless he paid the bill withip 48 hours, service of natural gas would be discontinued to his premises and would not be resumed until the bill was paid. The 8 months was the period from January 1, 1920, to the 1st day of the first month following the decision in this court before referred to. Appellant thereupon commenced this action. The ease was removed to the District Court of the United States for the District of Kansas, referred to a master, report made by him, which was confirmed by the court, and decision entered in favor of appellees herein. No question was raised in the trial court as to jurisdiction. Upon appeal and submission to this court it was apparent to us from the record then presented that jurisdiction in the federal court was lacking. Following the procedure laid down by this court in Lamed v. Jenkins, 109 F. 100, 48 G. G. A. 252, we ordered the submission of the ease set aside, and its replacement upon the calendar, with permission to counsel on either side to bring other parts of the record to the attention of the court, as bearing on the question of jurisdiction. This has been done, and an additional transcript of record filed, which contains the petition for removal from the district court of Sedgwick county, Kan., to the United States District Court, As our attention to the question of jurisdiction was challenged in the former appeal (298 F[ 299), it is natural that we again survey the record on this question; it being the duty of this court to deny jurisdiction as to itself and as to the court from which the record comes, if it is apparent from the whole record and the nature of the case that the jurisdictional amount is not really involved. A general allegation under such circumstances that-the amount in controversy exceeds the jurisdictional requirement is of no avail. Garvin v. Kogler (C. C. A.) 272 F. 442; Norton et al. v. Lamey (C. C. A.) 289 F. 395;. Chicago, B. & Q. Ry. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521; Vance v. W. A. Vandercook Co., 170 U. S. 648, 18 S. Ct. 674, 42 L. Ed. 1100; Lion Bonding Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871; Morris v. Gilmer, 129 U. S. 315, 9 S. Ct. 289, 32 L. Ed. 690. Jurisdiction in this cause depends upon “where the matter in controversy exceeds, exclusive of interest and costs, the sum or value of $3,000.” Judicial Code, § 24 (Comp. St. § 991). What is the matter in controversy here,. and does its sum or value exceed $3,000,. exclusive of interest and costs? The matter in dispute is the alleged right to collect from appellant for 8 months the $2 per month extra charge allowed to appellees by the Public Utilities Commission of the state-of Kansas for supplying natural gas to-its consumers in the city of Wichita and to-bring about payment by appellant by turming off the supply of gas being furnished to him. It is clear appellant has no right involved in the controversy equaling in value the jurisdictional amount. If appellant succeeds in his suit, the result is that appellees could not collect the $16 by shutting off the natural gas, or possibly in any other way. If there is jurisdiction, it must be because of the value of appellees’ alleged rights. Appellees claim in the petition for removal from the state court that the rights which it seeks to protect against the assault of appellant are of a sum or value equaling the jurisdictional requirement. Such claimed rights are twofold: (1) The right to collect a certain sum from the appellant under the order of the Public Utilities Commission for Kansas, and to collect like sums from other persons not parties to this cause, but who are similarly situated; (2) the right to shut off the gas being furnished to appellant; and all other parties similarly situated, in order to force payment of said sums of $2 per month per consumer for a period of 8 months. This particular subdivision of section 24 of the Judicial Code, relating to “the matter in controversy” and “the sum or value of,” has been the subject of much consideration by text-writers and by the courts. We refer to some of these enunciations. In Poster on Federal Practice, § 13, tho author states tho rule as follows: “In a suit for an injunction, the value of the matter in dispute is that of the object of the bill, namely, the value, to the plaintiff, of the right for which he prays protection, or the value, to the defendant, of the acts of which the plaintiff prays prevention.” Rose’s Code of Federal Procedure, § 129, note (g), is in part as follows: “In a suit for an injunction the matter in dispute is not determined by the amount which the complainant might recover at law for tho acts complained of, but by the value of tho right to be protected or the extent of the injury to be prevented by the injunction.” In Smith v. Adams, 130 U. S. 167, 175, 9 S. Ct. 566, 569 (32 L. Ed. 895), the court says: “By matter in dispute is meant the subject of litigation, the matter upon which the action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony is taken. It is conceded that the pecuniary value of the matter in dispute may be determined, not only by the money judgment prayed, where such is the case, hut in some eases by the increased or diminished value of the property directly affected by the relief prayed, or by the pecuniary result to one of the parties immediately from the judgment. Thus a suit to quiet the title to parcels of real property, or to remove a cloud therefrom, by which their uso and enjoyment by the owner are impaired, is brought within the cognizance of tho court, under the statute, only by the value of the property affected.” In Mississippi & Missouri Railroad Co. v. Ward, 2 Black, 485, 492 (17 L. Ed. 321), an attempt was made to abate the Rock Island bridge over the Mississippi river, the bill being filed on the theory that the bridge was an obstruction to navigation. No damages were asked. The Supreme Court said: “But the want of a sufficient amount of damage having been sustained to give the federal courts jurisdiction will not defeat the remedy, as the removal of the obstruction is the matter of controversy, and, the value of the object must govern.” Whitman v. Hubbell (C. C.) 30 F. 81, was a suit to restrain the maintenance of an awning over a part of a street adjoining tho plaintiff’s premises. It was held that the matter in dispute was the value of the right to maintain the awning, and not the amount of damage done by it to the plaintiff. In Texas & P. Ry. Co. v. Kuteman, 54 F. 547, 4 C. C. A. 503, the railroad company sought by an injunction to restrain a shipper from prosecuting in a state court a multiplicity of suits for freight overcharges. The court held that the maintenance of the schedule rate under which the charges were made was the real subject of dispute, and that jurisdiction was measured by the value of such right of maintenance. In Butchers’ & Drovers’ Stockyards Co, v. Louisville & N. R. Co., 67 F. 35, 14 C. C. A. 290, the question arose on eomplaint regarding equal facilities for shipping cattle. The eomplaint alleged the damage by the refusal of such equal facilities exceeded $2,000, the then jurisdictional requirement. It was held that in the absence of plea to jurisdiction this allegation was sufficient. In City of Hutchinson et al. v. Beckham et al., 118 F. 399, 55 C. C. A. 333, this eourt held that the amount there involved was the value of the complainant’s right to conduct its business without being subjected to the, burden of illegal license taxes imposed by a city ordinance, which was being enforced by the arrest of its employes. Tn Riverside & A. Ry. Co. v. City of Riverside et al. (C. C.) 118 F. 736, a question arose concerning the right of a city to shut off the supply of electric power under a contract. The court held the amount or value in dispute for jurisdictional purposes was the value of complainant’s right under the contract, and not the amount of payments to be made thereunder. In Board of Trade of City of Chicago v. Celia Commission Co. et al., 145 F. 28, 29, 76 C. C. A. 28, 29 (this court),’the question of jurisdictional amount or value was raised, and the court said: “In a suit to enjoin a threatened or continued commission of certain acts the amount or value involved is the value» of the right which the complainant seeks to protect from invasion, or of the object tó be gained by the bill. It is not the sum he might recover in an action at law for the damage already sustained, nor is he required to wait until it reaches the jurisdictional amount.” In Studebaker v. Salina Waterworks Co. (D. C.) 195 F. 164, suit was brought by complainant to restrain defendant from cutting off its water.service, threatened because of complainant’s refusal to pay for meter water service ffurnishe^l 'him by defendant. The' court held that the allegations of the petition for removal presented a ease in which there was involved a right of defendant company to transact its business affairs in the method it desired to pursue as to all its customers in the city of Salina, and that the value of the right, and not the amount demanded of complainant, was the subject-matter involved in the controversy with complainant; In Martin v. City Water Co. of Chillicothe, Mo. (D. C.) 197 F. 462, ’the petition for removal from the state court alleged that the suit involved the question of the right of the company to maintain a metered service and to charge a meter rate for water, and that the amount in eontro;versy exceeded, exclusive of interest and costs, $3,000. The court held that the right claimed by defendant to be at stake was sufficient to confer jurisdiction, and said: “In due time, also, the amount concededly involved would ripen into the necessary jurisdictional amount.” In Scott v. Donald, 165 U. S. 107, 17 S. Ct. 262, 41 L. Ed. 648, the defendant had threatened to seize and destroy the liquor imported by plaintiff into the state, the record showing that the party intended to import liquor of a value exceeding $2,000. Held, the jurisdictional amount sufficiently appeared. In Berryman v. Board of Trustees of Whitman College, 222 U. S. 334, 32 S. Ct. 147, 56 L. Ed. 225, the college sought to enjoin the collection of a tax against it on the ground that it was exempt from taxation by contract. It was held the matter in dispute was the claimed right of exemption. The pecuniary result of the judgment there would be greater than the jurisdictional amount. In Western & Atlantic Railroad v. Railroad Commission of Georgia et al., 261 U. S. 264, 43 S. Ct. 252, 67 L. Ed. 645, the Supreme Court, in a suit by a railroad attacking as unconstitutional a state order requiring -it to use and operate an industrial spur track, found that the jurisdictional amount was involved; that the pecuniary amount involved included, not only the cost of construction, but interest thereon, and depreciation, maintenance, and operating. expenses capitalized at a reasonable rate. In Sovereign Camp, Woodmen of the World, v. E. E. O’Neill, B. F. Vaughan, R. H. Buck, et al., 45 S. Ct. 49, 69 L. Ed.—(opinion Hied on Supreme Court of the United States November 17, 1924), the question of jurisdiction is discussed. The court found that a conspiracy to prosecute by concert of action numerous baseless claims existed, and that this partook of the nature of a fraudulent conspiracy, and that in a suit 'to enjoin them from being separately prosecuted it must be deemed to tie together such several claims as one claim for jurisdictional purposes. The action was brought by the Sovereign Camp, Woodmen of the World, against 25 of its members, citizens of Texas, who had brought 25 separate actions at law against the society in a Texas court to recover various amounts; each one claiming, however, less than $3,000. The trial court dismissed the bill on the ground that the court was without jurisdiction, the requisite jurisdictional amount not being present. The Supreme Court reversed this, holding jurisdiction existed. It would unduly extend this opinion to refer to numerous other eases where jurisdiction has been sustained. Wé find none closely in point. No rules as to how jurisdictional amount shall be arrived at can» be laid down governing every case, for there are different shades of fact differentiating the various eases, and each one is dependent upon its own particular facts and circumstances. This case is not claimed to be what is sorpetimes termed a class case. No one here is suing to maintain any one else’s right. Appellant is a single litigánt, suing for himself alone; he speaks for none other. There is no question of joint or common, undisputed, united interest collectively aggregating the jurisdictional amount, as discussed in Troy Bank v. G. A. Whitehead & Co., Inc., 222 U. S. 39, 32 S. Ct. 9, 56 L. Ed. 81; Eberhard et al. v. Northwestern Mut. Life Ins. Co., 241 F. 353, 154 C. C. A. 233; Louisville & N. R. Co. v. Smith et al., 128 F. 1, 63 C. C. A. 1; Cowell et al. v. City Water Supply Co. et al., 121 F. 53, 57 C. C. A. 393; Local Union No. 497, etc., v. Joplin & P. Ry. Co. (C. C. A.) 287 F. 473. The question involved is not the value of the right to conduct a business unmolested and uninterfered with, as in Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Hunt v. New York Cotton Exchange, 205 U. S. 322, 27 S. Ct. 529, 51 L. Ed. 821; City of Hutchinson et al. v. Beckham et al., 118 F. 399, 55 C. C. A. 333; Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U. S. 121. 36 S. Ct. 30, 60 L. Ed. 174; Board of Trade v. Celia Commission Co., 145 F. 28, 76 C. C. A. 28. The question of the value of a right to maintain a schedule of rates, as in Texas & P. Ry. Co. v. Kuteman, 54 F. 547, 4 C. C. A. 503, is not here. If this penalty can be termed a rate, it bad ended nearly 2 years before the attempt was made to collect. It is not a case whore the amount involved will ripen within any reasonable time into the jurisdictional amount, as in Martin v. City Water Co. of Chillicothe, Mo. (D. C.) 197 F. 462. It will never be more than the $16, plus interest. It is not a question of a right under a contract equaling in value the jurisdictional amount, as in Riverside & A. Ry. Co. v. City of Riverside et al. (C. C.) 118 F. 736; Berry-man v. Board of Trustees of Whitman College, 222 U. S. 334, 32 8. Ct. 147, 56 L. Ed. 225. Nor is it a ease where the pecuniary result of a judgment for or against plaintiff would be more than the jurisdictional amount as in Hunt v. New York Cotton Exchange, 205 U. S. 322, 27 S. Ct. 529, 51 L. Ed. 821; W. & A. R. R. v. R. R. Comm., 261 U. S. 264, 43 S. Ct. 252, 67 L. Ed. 645; McNeill v. Southern Ry. Co., 202 U. S. 543, 26 S. Ct. 722, 50 L. Ed. 1142; Bitterman v. Louisville & Nashville R. R. Co., 207 U. S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693. Any judgment in this ease settles nothing, except the right of appellees to collect from this particular appellant and to collect by the coercive method threatened. As far as the alleged rights of appellees are related to appellant they amount in value to $16. If appellees should win the ease, they are at liberty to use the coercive measure of collection by shutting off the natural gas. Of course, the decision of the case may have an effect upon the thousands of other consumers of natural gas in the city of Wichita, and it may not. So far as this record is concerned, we are not advised whether they have paid the additional rate of $2 for the 8 months. If they have not, a decision of the federal court that the order of the Public Utilities Commission of December 22, 1919, was void, and that collection of the $2 per month could not be made, would not tend to instill in them a desire to pa.y it. On the other hand, a decision of the court that the order was legal, and that such coercive measures could be used, might accelerate payments. All this would indirectly bear on the value of appellees’ rights. It is perfectly apparent, however, that the value of the matter in dispute in this particular case between these particular parties, unaffected by its relationship to other parties similarly situated, is $16 and no more. If, in arriving at a value of a right claimed, a court may consider the value of such right as augmented by its relationship to and effect upon other persons not parties to the case, then the door to federal jurisdiction would be opened wide. Many eases decided in the courts affect others indirectly who are not parties thereto. ‘ The alleged rights of appellees as against others who are not parties to the suit are not in dispute in this ease, within the meaning of the statute. We think “the value of the matter in controversy,” as the term is used in section 24 of the Judicial Code, means the pecuniary result to either party which the judgment entered in the case would directly produce, either at once or in the future. Where the right (the value of which is taken as the test) exists in favor of many persons as against one, or in favor of one as against many, and in its nature is separable, then the separable values cannot be added together to make the jurisdictional sum, and the separable valué furnishes the jurisdictional test. These propositions are abundantly sustained by decisions of the federal courts. The leading case is Elgin v. Marshall, 306 U. S. 578, 582, 1 S. Ct. 484, 488 (27 L. Ed. 249). The question was there raised as to whether the amount involved in the suit was sufficient to give the Supreme Court jurisdiction of the writ of error to review the judgment upon interest coupons against the town of Elgin, Minn., in the sum of $1,660. These coupons were detached from bonds amounting to $7,500 issued under the Minnesota statutes. The defense to the suit was the unconstitutionality of the issue of the bonds. The court held that the jurisdictional amount was limited to the amount involved in the suit, viz..$1,660. The Supreme Court there said (page 582, 1 S. Ct. 488): “Indeed, so strictly has it been applied that, in cases where, although the entire matter in dispute in the suit exceeds in value the jurisdictional limit, nevertheless, if there are several and separate interests in that sum, belonging to distinct parties,.and constituting distinct causes of aetion, although actually united in one suit and growing out of the same transaction, the jurisdiction of the court has been constantly denied.” And the court also said (pages 579, 580, 1 S. Ct. 486): “In our opinion, sections 691 and 692, Rev. Stat., which, as amended by section 3 of Act Feb. 16, 1875, c. 77, limit the jurisdiction. of this court, on writs of error and appeal, to review final judgments in civil actions, and final decrees in cases of equity and of admiralty and maritime jurisdiction, to those where the matter in dispute, exclusive of costs, exceeds the sum or value of $5,000, have reference to the matter which is direetly in dispute, in the particular cause in which the judgment or decrees sought to be reviewed has been rendered, and do not permit us, for the purpose of determining its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.” See, also, Parker v. Morrill, 106 U. S. 1, 1 S. Ct. 14, 27 L. Ed. 72. In Opelika City v. Daniel, 109 U. S. 108, 3 S. Ct. 70, 27 L. Ed. 873, the Supreme Court followed Elgin v. Marshall, supra, staging that jurisdiction depended on “the matter which is directly in dispute in the particular cause in which the judgment or decree sought to be reviewed has been rendered,” and that the court was not.permitted “for the purpose of determining Its sum or value, to estimate its collateral effect in a subsequent suit between the same or other parties.” • in Bruce v. Manchester & Keene R. R., 117 U. S. 514, 516, 6 S. Ct. 849 (29 L. Ed. 990), action was brought by Bruce, a citizen of Illinois, and Shepard, a citizen of Massachusetts, to collect interest on certain bond of the Manchester & Keene Railroad. The bill was filed in behalf of the complainants and of other like creditors, not citizens of New Hampshire, although no such creditors connected themselves with the suit. The interest unpaid did not amount to $3,000. The court dismissed the corn-plaint, because the jurisdictional amount did not appear, and followed the rule laid down in Elgin v. Marshall, supra. Speaking of the complainants, it said: “They sued for themselves and all others in like situation who might join with them, but no one saw fit to join. They were allowed to proceed alone, and the payment to them of their interest would have -been a bar to the further prosecution of the suit. So, if a decree had been rendered in their favor without others joining in the suit, either by petition or by proof before a master, or otherwise, it would have been satisfied by. the payment of the amount found due to them, and no further proceedings could thereafter be had.”- In Market Co. v. Hoffman, 101 U. S. 112, 113 (25 L. Ed. 782), some 200 persons occupying market stalls in the market of the Washington Market Company brought suit to enjoin the putting up at auction.leases of these stalls for a series of years. The court said: “While it may be true that, if Hoffman was the sole eomplainant, the amount in controversy would be insufficient to justify an appeal either by him or the company, the case is one of 206 complainants suing jointly, the decree is a single one in favor of them all, and in denial of the right claimed by the cornpany, which is of far greater value than the. sum which, by the act of Congress, is the limit below which an appeal is not allowable. It is averred under oath in thé pleadings that the sale which the company proposed to make, and the court below enjoined, would have realized to the company more than $60,000. Of this benefit the decree deprives them. It is very plain, therefore, that the appeal is one within our jurisdiction.” The pecuniary result there, whichever way the judgment went, would be greater than the necessary jurisdietional amount. It is to be noted that the court said that, if Hoffman were the sole eomplainant, the amount in controversy would be insufficient to justify an appeal either by him or by the company. That case is very much in point, and the obiter dictum of the court fits the present case, In Gibson v. Shufeldt, 122 U. S. 27, 29, 7 S. Ct. 1066, 1067 (30 L. Ed. 1083), the court, reviewing a large number of cases, discusses the question of “the matter in dispute,” and the value thereof with reference to the appellate jurisdiction of the Supreme Court, and says: “The sum or value really in dispute between the parties in the ease before this court, as shown by the whole record, is the test of its appellate jurisdiction, without regard to the collateral effect of the judgment in another suit between tlio same or other parties.” Also (page 39, 7 S. Ct. 1072) : “The solo matter in dispute, therefore, is between the defendants and each plaintiff as to the amount which the latter shall recover; and the motion to dismiss the appeal of the defendants as to all the plaintiffs, except the one whoso debt exceeds $5,000, must be granted.” In The Sydney, 139 U. S. 331, 338, 11 S. Ct. 620, 621 (35 L. Ed. 177), the court said: “The principle of the case of Elgin v. Marshall, that the sum or value really in dispute between the parties in the case before this court, as shown by the whole record, is the test of its appellate jurisdiction, without regard to the collateral effect of the judgment in another suit between the same or other parties, has since been repeatedly affirmed by this court, and that ease cited and approved.” In New England Mortgage Security Co. v. Gay, 145 U. S. 123, 130, 12 S. Ct. 815, 816 (36 L. Ed. 646), the court said: “It is well settled in this court that, when our jurisdiction depends upon the amount in controversy, it is determined by the amount involved in the particular case, and not by any contingent loss either one of the parties may sustain by the probative effect of the judgment, however certain it may be that such loss will occur.” In Walter v. Northeastern Railroad Co., 147 U. S. 370, 373, 374, 13 S. Ct. 348 (37 L. Ed. 206), objection was taken to the jurisdiction of the court below upon the ground that the matter in controversy with each of the defendants was less than the jurisdictional requisite. The court said: “Is the plaintiff entitled to join them all in a single suit in a federal court, and sustain the jurisdiction by reason of the fact that the total amount involved exceeds $2,-000? We think not. It is well settled in this court that when two or more plaintiffs, having- several interests, unite for the. convenience of litigation in a single suit, it can only be sustained in the court of original jurisdiction, or on appeal in this court, as to those whose claims exceed the jurisdictional amount, and that when two or more defendants are sued by the same plaintiff in one suit the test of jurisdiction is the joint or several character of the liability to the plaintiff. * * * In short, the rule applicable to several plaintiff's having separate claims, that each must represent an amount sufficient to give the court jurisdiction, is equally applicable to several liabilities of different defendants to the same plaintiff.” In Colvin v. Jacksonville, 158 U. S. 456, 15 S. Ct. 866, 39 L. Ed. 1053, it was held that in a suit to restrain the issue of bonds by a municipal corporation the jurisdiction of the Circuit Court was determined by the -amount of the interest of the complainant, and not by the amount of the issue of bonds. In Fishback v. Western Union Telegraph Co., 161 U. S. 96, 16 S. Ct. 506, 40 L. Ed. 630, it was held that the Circuit Court of the United States had no jurisdiction of a bill to enjoin the collection of separate county taxes by separate eounty officers in the state of Arkansas against the Western Union Telegraph Company on its line in each of said counties in that state, when the amount of the tax in each one of the counties is less than the jurisdictional amount; that the various county assessments could not be aggregated to make up the jurisdictional amount; and the court ruled that the record did not show that the amount of any one of the different eounty assessments equaled the jurisdictional sum. In Edwards v. Bates County, 163 U. S. 269, 16 S. Ct. 967, 41 L. Ed. 155, it was held that the matured coupons on municipal bonds are to be treated as separable, independent promises in determining jurisdictional amount, and not as interest upon the bond. In Citizens’ Bank v. Cannon, 164 U. S. 319, 17 S. Ct. 89, 41 L. Ed. 451, it was held that jurisdiction could not be conferred on a Circuit Court of the United States by joining in one bill aga-inst distinct defendants claims no one of which reaches the jurisdictional amount. In Wheless v. St. Louis et al., 180 U. S. 379, 382, 21 S. Ct. 402, 403 (45 L. Ed. 583), owners of lots filed a bill to restrain the assessment against them of the cost and expense of improving a public street. The court held that, as neither one of the complainants would be required to pay the jurisdictional amount in respect of lots involved, there was no jurisdiction. The court said: “The ‘matter in dispute, within the meaning of the statute, is not the principle involved, but the pecuniary consequence to the individual party, dependent on the litigation, as, for instance, in this áuit, the amount of the assessment levied, or which may be levied, as. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_othappth	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Milton E. SPARKS, Plaintiff-Appellant, v. GILLEY TRUCKING COMPANY, INCORPORATED, Defendant-Appellee. No. 92-1547. United States Court of Appeals, Fourth Circuit. Argued Dec. 2, 1992. Decided April 21, 1993. James Collins Landstreet, II, Cowan & Landstreet, Elizabethton, TN, argued, for plaintiff-appellant. Frank Parrott Graham, Roberts, Stevens & Cogburn, P.A., Asheville, NC, argued, for defendant-appellee. Before WILKINSON and NIEMEYER, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION NIEMEYER, Circuit Judge: The principal issue presented in this appeal is whether evidence of prior speeding tickets may be admitted under Federal Rule of Evidence 404(b) to prove negligence in an automobile tort case. We hold that in the circumstances of this case it was prejudicial error for the district court to have admitted such evidence, and we therefore vacate the judgment and remand the case for a new trial. I Late on a June afternoon in 1987, Milton E. Sparks was driving up a mountain near the North Carolina-Tennessee border in his red Corvette when a logging truck came down the mountain in the opposite direction. After the vehicles passed by each other, Sparks lost control of his car, hit a tree, and sustained serious personal injuries. Sparks sued Gilley Trucking Company, the owner of the logging truck, alleging negligence, and Gilley Trucking filed a defense contending that Sparks’ own negligence contributed to the accident. At trial Sparks testified that the truck was traveling in the middle of the road and that, in trying to avoid a collision, he ran off the road and hit a tree. The driver of the truck testified to different facts, stating that Sparks was driving at an excessive rate of speed in the middle of the road and lost control when he swerved to avoid hitting the truck. To advance its theory that Sparks was speeding and, indeed, racing at the time of the accident, Gilley Trucking was allowed to introduce, over Sparks’ objection, evidence that Sparks had been convicted of speeding on several prior occasions. Relying on Federal Rule of Evidence 404(b), the district court admitted the evidence “to show intent, preparation, plan or motive to race or speed on the day in question.” This evidence formed a principal part of Gilley Trucking’s defense that on the day of the accident Sparks was contributorily negligent. Gilley Trucking also presented testimony of the investigating police officer who estimated Sparks’ rate of speed immediately before the accident at 70 m.p.h. The jury found that negligence of both drivers contributed to the accident and, as required by North Carolina law, rendered judgment for the defendant trucking company. On appeal Sparks contends that the district court erred in admitting both the evidence of prior speeding tickets and the expert testimony. II The principal issue turns on whether the fact that Sparks was convicted of speeding on prior occasions had a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. The analysis begins with the recognition that Federal Rule of Evidence 404(a) provides that “[ejvidence of a person’s character or a trait of character” is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion. Attempting to prove conduct by showing a character trait is too general and unreliable a method, and therefore it is excluded under the same principle as is reflected in Rule 403 — any probative value is “substantially outweighed by the danger of unfair prejudice.” Accordingly, Rule 404(b) provides that evidence of prior “crimes, wrongs or acts” may be admitted to prove a relevant fact except when it is offered solely to “prove the character of a person in order to show action in conformity therewith.” Rule 404(b) is thus a rule of inclusion that permits the admission of prior acts if probative to an aspect of the case and not offered merely to establish a character trait which would encompass the type of conduct in question. See United States v. Masters, 622 F.2d 83, 85-86 (4th Cir.1980). Thus, when intent to commit a crime is at issue, we have regularly permitted the admission of prior acts to prove that element. A criminal defendant, for example, cannot deny knowledge of drug trafficking or an intent to traffic in drugs and at the same time preclude the admission of the government’s evidence of prior occasions when he willingly trafficked in drugs. We have held repeatedly that when intent to commit an act is an element of a crime, prior activity showing a willingness to commit that act may be probative. See, e.g., United States v. Mark, 943 F.2d 444, 448 (4th Cir.1991); United States v. Rawle, 845 F.2d 1244, 1247-48 (4th Cir.1988). The Supreme Court pointed out in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the importance that prior act evidence may have in deciding a disputed issue, “especially when that issue involves the actor’s state of mind and the only means of ascertaining that mental state is by drawing inferences from conduct.” Id. at 685, 108 S.Ct. at 1499. Thus when evidence of prior acts is probative of a fact material to the case, Rule 404(b) permits its admission even when it may tend also to show a character trait. To protect against the danger of prejudice the court should give a limiting instruction under Rule 105 if one is requested and must, in any event, weigh the prejudicial effect under Rule 403. In a common law negligence case, however, the issue is generally not the defendant’s state of mind. Rather the factfinder must determine whether the defendant was acting as a reasonable person would have acted in similar circumstances. In this case Gilley Trucking was attempting to prove that Sparks was speeding or racing at the time of the accident and therefore driving in a negligent manner that contributed to the resulting accident. Yet proof of negligence does not require a showing of intent or plan, the stated purposes for which the prior speeding tickets were admitted by the district court. Moreover, prior acts of speeding alone do not establish intent because a speeding violation does not depend on intent. A speeding ticket may be issued regardless of the defendant’s state of mind. Indeed, accidental or inadvertent speeding may result in the issuance of a speeding ticket. See N.C.Gen. Stat. § 20-141. If Gilley Trucking was attempting to show that Sparks was racing at the time of the accident, it took upon itself the unnecessary burden of showing that Sparks was speeding intentionally to show that he was driving negligently. While an intentional act does require proof of a state of mind, for which prior acts may be admissible, a showing of prior acts of speeding without more is still not relevant to establishing this state of mind. Gilley Trucking made no effort to show that any prior speeding was deliberate or was in any way related to racing. Indeed, Sparks’ explanations tend to suggest that the conduct resulted more from inadvertence. For example, he said, “As far as I know every speeding ticket I’ve ever had has been out on interstate road traveling back and forth to and from jobs.” Nor did Gilley Trucking present any foundation for the theory that-the prior tickets revealed a “plan” or a “motive” to race on the day of the accident, and none of the evidence about the tickets discloses preparation to speed or race on that day. The relatively extensive evidence of the several prior speeding tickets in this case tended to show at most a trait about Sparks, that he tended to speed, and to suggest that because he speeded on prior occasions, he was speeding at the time of the accident. This purpose for using the prior acts evidence, however, is the one specifically prohibited by Rule 404, as we have already observed, and the evidence should not have been admitted. While it was error to have admitted evidence of the prior speeding tickets in the circumstances of this case, a new trial is warranted only if admission of the evidence was not harmless error. See 28 U.S.C. § 2111 (judgments not to be set aside on appeal based on “errors or defects which do not affect the substantial rights of the parties”); Fed.R.Evid. 103(a) (same). In the circumstances of this case we do not find the error harmless. When the speeding tickets are excluded, the evidence presents close factual issues. Sparks and the Gilley Trucking driver testified to different versions of the events leading to the accident. There was conflicting testimony and physical evidence of Sparks’ speed. Against the backdrop of this stand-off, the jury heard detailed evidence about several prior occasions when Sparks was convicted of speeding, and this evidence thus became an important aspect of Gilley Trucking’s presentation to the jury. Cf. Bonilla v. Yamaha Motors Corp., 955 F.2d 150, 154-55 (1st Cir.1992) (finding erroneous admission of speeding tickets not harmless error). We cannot determine that the evidence did not adversely affect the outcome of the case. See Ellis v. International Playtex, Inc., 745 F.2d 292, 305 (4th Cir.1984) (error not harmless when court could not be certain refusal to admit evidence did not prejudice outcome). Accordingly, we conclude that a new trial is necessary in this case. Ill Sparks also contends that the district court erred in allowing Officer D.K. Doster, who investigated the accident, to testify as an expert witness for Gilley Trucking that immediately prior to the accident he estimated Sparks’ speed at 70 m.p.h. Sparks argues that the court should not have admitted the expert testimony of Officer Doster as it was without sufficient factual basis, in particular because Officer Doster did not measure the friction of the highway surface in question before applying a coefficient of friction to the length of the skid marks when estimating Sparks’ speed. While resolution of this issue is not necessary to the immediate disposition of this appeal, we address it because the testimony of Officer Doster may again be offered at a new trial. Expert witnesses may testify whenever special knowledge will assist the trier of fact. Fed.R.Evid. 702. Whether to allow expert testimony and whether a potential witness possesses sufficient education and training to render an expert opinion are questions committed to the discretion of the trial judge, and our review determines only whether this discretion has been abused. See Persinger v. Norfolk & W. Ry., 920 F.2d 1185, 1187 (4th Cir.1990). Here, the district court concluded that expert testimony would help the jury evaluate the physical evidence and consider how fast Sparks was driving. The court accepted Officer Doster as an expert on rates of speed after it was presented with evidence of his experience in accident investigation and reconstruction as a member of the North Carolina Highway Patrol and the Franklin Police Department and his training through formal instruction. We do not find that the court abused its discretion. Sparks argues, however, that even if Officer Doster was properly accepted as an expert, he should not have been allowed to give his opinion on speed without having conducted a proper coefficients of friction test because without it he lacked the necessary factual basis to form a useful opinion. Sparks is correct in noting that a court may refuse to allow a generally qualified expert to testify if his factual assumptions are not supported by the evidence. See Eastern Auto Distrib., Inc. v. Peugeot Motors of America, Inc., 795 F.2d 329, 337-38 (4th Cir.1986). In this case, however, the objection relates more to how Officer Doster formed his opinion than to the facts upon which it was based. Officer Doster was the first officer on the scene. He saw the skid marks, their length, and their direction, and he observed the highway surface, the condition of the car, and the tree it hit. Moreover, all of the facts he considered in making his estimate were in evidence. Whether he properly performed a test goes more to the weight to be attached to his opinion than to its admissibility. See, e.g., Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986) (finding that failure to include certain variables in a regression analysis went to the probative weight of the analysis, not to its admissibility). The proper methods for addressing the perceived shortcoming in Officer Doster’s technique were cross-examination and the presentation of rebutting expert testimony, and Sparks availed himself of both methods. Thus, while we find no abuse of discretion by the district court in admitting the expert testimony, we nevertheless vacate the judgment and remand for a new trial because the admission of evidence of prior speeding tickets was improper and prejudicial. REVERSED AND REMANDED. . In cases where character itself becomes relevant to an issue, however, it may be proved by prior acts. See Fed.R.Evid. 405(b). . We are careful to note that our opinion is limited to the circumstances of this case and should not be construed to establish a per se rule that would require the exclusion of a party's driving record under different circumstances. See, e.g., United States v. Fleming, 739 F.2d 945, 949 (4th Cir. 1984) (admission 'of prior drunk driving convictions not error in vehicular death case as prosecutor must show malice&emdash;awareness of risk of drinking and driving), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 973 (1985). . In contrast, we need not address Sparks' final assignment of error&emdash;that the district court erred in refusing to allow Earl Street to testify for Sparks as a rebuttal witness to impeach the testimony of the Gilley Trucking Driver. The court ruled that Sparks' notification of the witness to Gilley Trucking was untimely, and to permit the witness to testify would be "unfair surprise” without giving Gilley Trucking "time to look into it.” By our new trial order, this issue is rendered moot. Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations ROBINSON v. HANRAHAN, STATES ATTORNEY OF COOK COUNTY No. 71-6918. Decided October 24, 1972 Per Curiam. On June 16, 1970, appellant was arrested on a charge of armed robbery and, immediately thereafter, the State of Illinois instituted forfeiture proceedings against appellant’s automobile pursuant to the Illinois vehicle forfeiture statute, Ill. Rev. Stat., c. 38, § 36-1 et seq. (1969). Appellant was held in custody in the Cook County jail from June 16, 1970, to October 7,1970, awaiting trial. Nevertheless, the State mailed notice of the pending forfeiture proceedings, not to the jail facility, but to appellant’s home address as listed in the records of the Secretary of State. It is undisputed that appellant, who remained in custody throughout the forfeiture proceedings, did not receive such notice until his release. After an ex parte hearing on August 19, 1970, the circuit court of Cook County ordered the forfeiture and sale of appellant’s vehicle. Upon learning of the forfeiture after his release, appellant filed a motion for rehearing, requesting that the order of forfeiture be set aside because the manner of notice did not comport with the requirements of the Due Process Clause of the Fourteenth Amendment. The circuit court of Cook County denied the motion. On appeal, the Supreme Court of Illinois, three justices dissenting, held that, in light of the in rem nature of the proceedings, substituted service as utilized by the State did not deny appellant due process of law. People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill. 2d 37, 284 N. E. 2d 646 (1972). We cannot agree. In Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), after commenting on the vagueness of the classifications "in rem, or more indefinitely quasi in rem, or more vaguely still, ‘in the nature of a proceeding in rem,’ ” this Court held that “the requirements of the Fourteenth Amendment to the Federal Constitution do not depend upon a classification for which the standards are so elusive and confused generally and which, being primarily for state courts to define, may and do vary from state to state.” Id., at 312. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id., at 314. More specifically, Múlleme held that notice by publication is not sufficient with respect to an individual whose name and address are known or easily ascertainable. Similarly, in Covey v. Town of Somers, 351 U. S. 141 (1956), we held that, in the context of a foreclosure action by the town, notice by mailing, posting, and publication was inadequate where the individual involved was known by the town to be an incompetent without the protection of a guardian. See also Schroeder v. New York, 371 U. S. 208 (1962); Walker v. City of Hutchinson, 352 U. S. 112 (1956); New York v. New York, N. H. & H. R. Co., 344 U. S. 293 (1953). In the instant case, the State knew that appellant was not at the address to which the notice was mailed and, moreover, knew also that appellant could not get to that address since he was at that very time confined in the Cook County jail. Under these circumstances, it cannot be said that the State made any effort to provide notice which was "reasonably calculated” to apprise appellant of the pendency of the forfeiture proceedings. Accordingly, we grant the motion for leave, to proceed in forma pauperis, reverse the judgment of the Supreme Court of Illinois, and remand for further proceedings not inconsistent with this opinion. Under Illinois law, the address of a vehicle owner must be registered in the office of the Secretary of State. Ill. Rev. Stat., c. 95%, §3-405 (1971). The Illinois vehicle forfeiture statute authorizes service of notice by certified mail to the address as listed in the records of the Secretary of State. Ill. Rev. Stat., c. 38, § 36-1 (1969). Appellant was tried on October 7, 1970, for the offense of armed robbery. The court, sitting without a jury, found appellant guilty only of plain robbery and sentenced him to probation for three years, the first four months of which to be served in the Cook County jail. In light of appellant’s pretrial detention, the four-month requirement was “considered served” and appellant was released immediately on his own recognizance. Since we dispose of this case on the notice question, we do not reach the additional issues raised by appellant. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_appel2_7_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 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"). Edward F. WARDE, Plaintiff-Appellee, v. Marvin B. DAVIS and Barbara Davis, Defendants-Appellants. No. 73-1080. United States Court of Appeals, Tenth Circuit. Argued and Submitted July 11, 1973. Decided March 19, 1974. Anthony Zarlengo, Denver, Colo., for def endants-appellants. John J. Mullins, Jr., Denver, Colo., for plaintiff-appellee. Before PHILLIPS, HILL and DOYLE, Circuit Judges. HILL, Circuit Judge. This diversity action involves a contract dispute over sums allegedly due ap-pellee Warde for landscape architectural services performed by him for appellants Barbara and Marvin Davis. The trial court found appellants liable for breach of contract and awarded appellee $13,200 plus interest. Following argument to this court, and after reviewing the entire record, we concluded that the findings of fact were insufficient for a proper review of the case. It was therefore remanded to the trial court for the purpose of making sufficient and adequate findings of fact in compliance with Rule 52, F.R.Civ.P. Adequate findings of fact subsequently were made and the case is now before us for a proper determination. The facts are simple. Appellants purchased real property in Englewood, Colorado, for the purpose of building a luxurious home. Desiring an aesthetically beautiful landscape to complement their new home, appellants asked Warde to design and supervise the landscape. Warde, a renowned landscape architect living in Beverly Hills, California, accepted the offer, but only on his own terms. These terms were set out in a letter to appellants dated September 19, 1968. The letter stated that appellants had requested Warde “to design and draw up Landscape Plans and Specifications” for their residence and that said plans were to consist of the following: 1. Landscape Construction Plans showing circular drive and parking area, tennis court and tennis pavilion, future swimming pool, gazebo or equivalent, location of air conditioning compressor, sun bathing area, enclosed play area with recessed trampoline, recessed sandbox and other play equipment. Also incorporated in this Plan will be the location of major trees, garden lighting, outline of planting areas, location and description of any necessary walls, fences, and screens, garden paths, and lawn area and other garden accessories. 2. Landscape planting plans showing location, size, and description of all planting material to be installed. The letter further stated the landscape plans would cost $1,800 and that “there will be, in addition, a supervision fee of 15% of the total amount spent.” Finally, the letter provided that Warde would be reimbursed for all expenses incurred in traveling to and from the job site from Los Angeles, California. Although reluctant to accept the 15% supervision fee, appellants ultimately relented and agreed to Warde’s terms. Once the landscape plans were tentatively drawn construction began, and shortly thereafter disagreements between appellants and Warde erupted. Appellants felt that Warde’s landscape plan specifications were too general to be acted upon by contractors. They also felt that Warde was not spending adequate time on the job, but rather was delegating many of his supervisory functions to contractors. Because he was not performing his work as appellants had anticipated, Warde’s services were terminated on November 25, 1969. This lawsuit followed. At trial appellant Davis testified that Warde spent very little time at the job site. Warde would come out to Engle-wood for one day and then fly back to Los Angeles, leaving all supervisory work to the subcontractors. He further testified that he and his wife placed many calls to Warde requesting him to come out more frequently and give the job closer supervision; but to no avail. He also intimated that Warde’s landscape plan specifications were too vague, as evidenced by the fact that on numerous occasions he or his wife received telephone calls from contractors asking for an explanation of Warde’s landscape plans. Warde denied being derelict in his supervisory duties. He testified that it was his practice to design the landscape, select locations for the construction, and select the aesthetically appealing material to be used in the construction. Much of the actual supervision was left to the contractor. As for landscape plan specifications, Warde conceded that details were left up to his contractors. Although landscape architects usually furnish detailed plans showing contractors what must be done, it was his procedure to utilize detailed specifications supplied by the contractors. Warde’s position is that technical specifications for a construction project can best be made by the experts in their respective fields, i. e., the contractors. The case was tried to the court without a jury. In the trial appellants asserted that Warde should not be allowed to recover because: (1) he violated state law by practicing landscape- architecture in Colorado without a Colorado license; (2) he failed to execute the contract according to its terms; and (3) the contract was a nullity because there was no mutual meeting of the minds on the meaning of “supervision”. The trial judge rejected these arguments and held that Warde was entitled to recover the 15% supervision fee on the cost of all work completed on or prior to his termination on November 25, 1969, plus the balance due on his landscape plans and reimbursement for travel expenses. He was also entitled to a 15% fee on that part of a swimming pool completed by November 25. In the final judgment Warde was awarded $13,200 for expenses and supervision fees plus $2,369.50 in interest. On appeal four issues are presented for our consideration. Appellants first charge that Warde’s failure to register as a landscape architect pursuant to Colorado statutes regulating the practice of architecture bars any recovery. Secondly, that it was error to allow Warde a supervision fee on those items completed on or shortly after the date of his termination. Thirdly, that it was error to conclude the letter of September 19, 1968 constitutes an agreement between the parties. Finally, that it was error to assess interest on the judgment. Whether failure to register as a landscape architect pursuant to Colorado law invalidates the contract between appellants and Warde raises a question not heretofore answered by the Colorado Supreme Court. We therefore are bound by the well settled rule that when a state court has not decided the question, the federal district court’s view of state law will be given great weight and credence. United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973); In re Privett, 435 F.2d 261 (10th Cir. 1970). The two applicable statutes state in part: C.R.S.1963, 10-2-2 (1967 Cum.Supp.). Qualifications for practice — seal—(1) No person shall use the designation “landscape architect” or “landscape architecture”, or advertise any title or description tending to convey the impression that he is a landscape architect, or practicing landscape architecture, unless such person is a registered landscape architect, and shall comply with the provisions of this article. Every holder of a registration shall display it in his principal office, place of business, or place of employment. C.R.S.1963, 10-2-6 (1967 Cum.Supp.). Exemptions — (3) None of the provisions of this article shall apply to the business conducted in this state by any horticulturist, nurseryman . . . or any other person, including, but not limited to, their right to plan and supervise in connection therewith, except that no such person shall use the designation “landscape architect”, “landscape architecture”, or any description tending to convey the impression that he is a registered landscape architect unless he is registered as provided in this article. The district court interpreted these statutes as prohibiting a person from holding himself out as an architect rather than prohibiting a person from engaging in the business of landscape architecture. Davis, Brody, Wisniewski v. Barrett, 253 Iowa 1178, 115 N.W.2d 839 (1962). Unquestionably the statutes specifically prohibit a person from using any title tending to convey the impression that he is a landscape architect unless registered by Colorado, but nowhere do the statutes expressly prohibit a person from engaging in the landscape architectural business without a Colorado license. The statutes are apparently an attempt to prevent fraud by unqualified persons who use the title “landscape architect” as a guise for soliciting clients. The statutes are directed more toward preventing misrepresentations than preventing the practice of landscape architecture. Appellants counter this argument by citing numerous cases where the Colorado courts have held service statutes to prohibit engaging in a service without a Colorado license, but in each case the statute expressly prohibited a person from engaging in a business without first obtaining a license. We do not find such an express prohibition here. There is no proof appellants were defrauded into employing Warde as their landscape architect. Appellants solicited Warde in the State of California to perform the services now in question. The record does not disclose that Warde represented himself to appellants as a landscape architect licensed by the State of Colorado. Nor is there any evidence that appellants selected Warde because they believed he was an architect licensed by Colorado. Rather the evidence is that appellants did not feel there were any landscape architects in Colorado qualified to do the work so they searched elsewhere to find a suitable architect. Davis is a competent businessman who unquestionably knew what he was doing when he employed Warde. We thus cannot find where Warde breached Colorado’s holding-out statutes in accepting employment with appellants. Appellants next argue the trial court erred in concluding that the letter of September 19, 1968, constitutes a valid contract between the parties. As noted earlier, that letter listed certain landscape plans to be drawn by Warde and stated the plans would cost $1,800 plus a supervision fee of 15% of the total amount spent. Appellants now charge there was no meeting of the minds on the terms “specifications” and “supervision”. Davis testified that he thought Warde would draw detailed specifications permitting subcontractors to proceed to fulfill the specifications, whereas in fact Warde relied upon the contractors for the detailed specifications. Davis also assumed that Warde’s supervisory function included being on the job site while work was proceeding to insure that the subcontractors were performing their work according to Warde’s specifications. This failure by both parties to agree on Warde’s duties, appellants argue, is a material breach which voids the contract. Our review of the record convinces us there was a meeting of the minds on the terms of the contract, and we therefore reject appellants’ contentions. Unquestionably Davis considered the September 19 letter an acceptable contract, because on October 10, 1968, he sent Warde a letter specifically approving the letter-contract and enclosing a check for $500 as a retainer fee. Apparently Warde’s modus operandi was accepted by appellants for quite some time because they retained Warde for over a year. During this time Warde was paid over $9,900 for traveling expenses and services rendered. Appellants’ retaining of Warde for over a year disposes of any argument that the contract failed for lack of a meeting of the minds. See Hensel Phelps Const. Co. v. United States, 413 F.2d 701 (10th Cir. 1969). Appellants next charge the trial court with error in concluding that Warde was entitled to a supervision fee on certain items. The trial court, after hearing all the evidence and viewing all exhibits, determined that Warde was entitled to his expenses plus a 15% supervision fee on those items contracted for and completed on or before the date of his termination. We have reviewed the record carefully and are convinced there is sufficient evidence to support the trial court’s determination. Appellants’ final argument is that the trial court erred in allowing Warde interest from December 1, 1970. It is their position that Warde recovered under a theory of quantum meruit, which is a claim fo.r unliquidated damages, and thus interest should not be allowed prior to judgment. As we mentioned earlier, the district court concluded there was a binding contract between Warde and appellants; hence the judgment was based upon breach of contract rather than quantum meruit. Warde was awarded interest from the time the money was due, and under Colorado law this is a proper determination. Harvey v. Denver & R. G. R. Co., 56 Colo. 570, 139 P. 1098 (1914); Donley v. Bailey, 48 Colo. 373, 110 P. 65 (1910); 1963 C. R.S. 73-1-2. After carefully reviewing the entire record we agree with the trial court’s decision and accordingly affirm it in all respects. 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_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. MONTGOMERY WARD & CO., Incorporated, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 18701. United States Court of Appeals Eighth Circuit. Nov. 30, 1967. Narcisse A. Brown, Chicago, 111., for petitioner; Daniel Walker, John P. Brundage, William F. McNally, Jack D. Brousard, Chicago, 111., and Roy E. Breckenridge, of McMahon & Berger, St. Louis, Mo., on the brief. Hans J. Lehmann, Atty., N. L. R. B., Washington, D. C., for respondent; Arnold Ordman, Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., and Gary Green, Atty., N. L. R. B., Washington, D. C., on the brief. Before VAN OOSTERHOUT, MATTHES and MEHAFFY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. Montgomery Ward & Co. (Wards) has petitioned us for review of the order of the National Labor Relations Board adopting in its entirety the findings and conclusions and recommended order of the Trial Examiner determining Wards guilty of a number of. violations of § 8(a) (1), National Labor Relations Act as amended (29 U.S.C.A. § 151 et seq.) and of a § 8(a) (5) violation. The Board has cross-petitioned for enforcement of its order in its entirety. Its decision and order are reported at 160 NLRB No. 137. Wards’ store here involved is located in Bloomington, Minnesota, within this Circuit. Jurisdiction is vested in this court by § 10(e) and (f) of the Act. The § 8(a) (1) Violations. Wards urges that the Board erred in finding it guilty of any § 8(a) (1) violation. The complaint contains seven specifically described § 8(a) (1) violations. The Board found three of such violations were established, to wit: (1) Presence of supervisory personnel in a bowling alley in a portion of which a union organizational meeting was being held constituted illegal surveillance. (2) Coerced interrogation of employees by supervisory personnel. (3) Unlawful offer to promote Miller, a union supporter, to a supervisory position in another store for the purpose of removing him from the bargaining unit. The Board found the other § 8(a) (1) violations specifically charged were not established. When proper legal standards are applied, we find no substantial evidentiary support on the record considered as a whole to support the Board’s findings of § 8(a) (1) violations under the teaching of Universal Camera Corp. v. N. L. R. B. 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. On the surveillance issue, the record discloses that four of Wards’ supervisory employees held a meeting at a table in the beer parlor portion of an adjacent bowling alley for the purpose of discussing a performance report just received, on August 26, 1965. Such meetings were held there on both prior and subsequent occasions. The employees were having an organizational meeting at the same bowling alley on the same date and this was known to the supervisors. The employees’ meeting room was located some 150 feet distant from the place occupied by the supervisors. The supervisors did see and exchange greetings with some of the employees who passed by. The supervisors were at a public place where they had a right to be and were using the facilities for its intended purpose. Such activity does not constitute unlawful surveillance. See N. L. R. B. v. Monroe Auto Equip. Co., 8 Cir., 368 F.2d 975, 981; N. L. R. B. v. Davidson Rubber Co., 1 Cir., 305 F.2d 166, 170. The alleged coerced interrogation of employees took place in a nearby coffee shop where one of the supervisors held separate interviews with various employees over a cup of coffee. The employees were reminded of the election date and told to be sure to vote. The company’s position opposing the union was discussed. Some employees were asked how they were going to vote but were not pressed. One employee was told, “I hate to see you get hurt.” In one interview, the supervisor made a notation forecasting his view of how the individual employees would vote at the election. We have held that the right of free speech guaranteed by the First Amendment and § 8(c) of the Act should not be defeated by narrow or strained construction. N. L. R. B. v. Howard Quarries, Inc., 8 Cir., 362 F.2d 236, 240; N. L. R. B. v. William J. Burns Int’l Detective Agency, Inc., 8 Cir., 346 F.2d 897, 903. Free speech, guaranteed by § 8(c), is by the terms of such section permitted “if such expression contains no threat of reprisal or force or promise of benefit.” In N. L. R. B. v. Ralph Printing & Lithographing Co., 8 Cir., 379 F.2d 687, 690, we held interrogation of an employee “not in itself threatening or coercive, would not violate Section 8(a) (1) unless it were conducted against a background of employer hostility and discrimination towards unionization, such as would induce its employees a fear of reprisal for lawfully pursuing their union activities." See Dierks Forests, Inc. v. N. L. R. B., 8 Cir. 385 F.2d 48 (November 16, 1967). In our present case, the Board specifically rejected claims that discharge was threatened for union activity. The Board also rejected the contention that employees Miller and Wersal were constructively discharged by oppressive treatment occasioned by their union activity. Nothing said in the coffee shop conversation and interrogations can fairly be said to contain any threat of reprisal or force or promise of benefit. Miller, a union supporter, was offered a position at a Wards station in a nearby small community where he would be the only mechanic. A vacancy existed in such shop. Miller was given a free choice of accepting or rejecting the position and turned down the offer after several days consideration. We find no substantial evidentiary basis for determining that the offer of the job had any relationship to Miller’s union views. Additionally the Examiner, upheld by the Board, determined Wards to be guilty of a number of § 8(a) (1) violations not charged in the complaint. The complaint charged specific violations and contained no catchall provision. The Board concedes that it attempted to prove additional violations not charged in the complaint and that no attempt was made to amend the complaint. The Administrative Procedure Act, 5 U.S.C.A. § 1004, and the Board’s own rule, 29 C.F.R. § 102.15, require that the complaint apprise the parties proceeded against of the violations charged. “Evidence without a supporting allegation cannot serve as the basis of a determination of an unfair labor practice.” “It offends elemental concepts of procedural due process to grant enforcement to a finding neither charged in the complaint nor litigated at the hearing.” Engineers & Fabricators, Inc. v. N. L. R. B., 5 Cir., 376 F.2d 482, 485. See N. L. R. B. v. Majestic Weaving Co., 2 Cir., 355 F.2d 854, 861; N. L. R. B. v. Threads, Inc., 4 Cir., 308 F.2d 1, 9-10. We recognize that National Labor Relations Board complaints do not have to conform to the technicalities of common law pleadings and that in appropriate situations, issues fairly tried even if not specifically pleaded are to be considered. However, this is not such a case. The additional violations were not referred to in the General Counsel’s opening statement. When evidence was first introduced on the non-charged violations, Wards objected on the ground the evidence was not within the scope of the issues pleaded. No attempt was made to amend and Wards, under the record here, cannot be held to have consented to the trial of issues not raised by the complaint. The Board erred in finding Wards guilty of unfair labor practices which were not properly charged. The § 8(a) (5) Violation. The Board determined that Wards, by refusing to recognize the Union as the exclusive representative of its employees, engaged in an unfair labor practice within the meaning of § 8(a) (5) and (1), and ordered Wards upon request to bargain collectively with the Union. Wards contends the bargaining order has no basis in law or in fact, because (1) the request of the Union for recognition in an appropriate unit did not raise a duty to bargain and can not form the basis for a violation of § 8(a) (5); (2) General Counsel failed to prove that the cards were not obtained by misrepresentation; and (3) Wards’ good faith doubt was abundantly proved and the finding that Wards sought delay to thwart organization is directly contrary to the record. The Union held a final organizational meeting on August 26, 1965. On August 27, 1965, it wrote Wards a letter, signed by the Union business manager, reading: “Due to the fact that we have the majority of the Application Cards from the employees of the Service Station at the Montgomery Ward Southtown Retail Store we are hereby requesting recognition as the Bargaining Agent for this unit.” On August 30, 1965, the Union filed a petition with the Regional Director calling for an election, stating that the bargaining unit consisted of all timecard employees of Wards service station unit excluding supervisory, secretarial and sales personnel, and stating the number in the unit to be twenty-seven. An election by secret ballot was ordered and held on November 5, 1965. Twenty-one employees were eligible to vote; twenty employees voted ten in favor of the union and ten against. Hence, the union lost the election. The order for the election also determines the composition of the bargaining unit. Wards suggested that the unit should cover all employees of the entire store, not just those in the service station unit. Such suggestion was rejected. The order provides that the unit shall be the service station unit and eliminates from the timecard unit proposed by the Union two receiving clerks and two parts men. What became of the two additional employees which reduced the voting unit to twenty-one does not appear in the record. At the hearing before the Trial Examiner, the Union for the first time produced the application cards upon which it relied to establish majority representation. Cards from twelve of the twenty-one employees subsequently certified as eligible to vote at the election were offered. In Fort Smith Broadcasting Co. v. N. L. R. B., 8 Cir., 341 F.2d 874, 880, we held: “A bargaining representative which seeks to enforce its right concerning an employer under § 8(a) (5) must show that it has been designated by a majority of the employees, that the unit of representation is appropriate, and that there has been both a demand that the employer bargain and a refusal of recognition by the employer in the absence of any good faith doubt as to the union’s majority status.” See N. L. R. B. v. Morris Novelty Co., 8 Cir., 378 F.2d 1000, 1006. In N. L. R. B. v. Johnnie’s Poultry Co., 8 Cir., 344 F.2d 617, we recognized that an employer has no vested right to insist that union representation be established by a Board conducted election but we further held that an employer acting in good faith belief that a union lacked majority representation was not required to recognize and bargain with the union until such doubt was resolved. In that case as in the present case, no signed cards or other proof was given the employer to establish majority representation, such proof being first produced at the trial. We held that no reliance can be placed upon a document which has not been brought to the employer’s attention. In our present case, the demand letter, supra, states “we have the majority of the Application Cards from the employees.” There is no representation that the Union has signed cards from a majority of the employees. The statement made in the letter could be true if only one employee had signed an application and the union had his card. The letter cannot be fairly construed as unambiguously claiming that the union represented a majority of the employees. The letter also refers to the employees as employees of the service station and nothing is said with respect to what was considered to be the appropriate unit. The appropriate unit issue was an issue in dispute between the parties and such issue was not resolved until the October 8 order fixing the election. The Union tendered Wards no proof with respect to either the number or specific members it was authorized to represent. Its petition for an election filed August 30 asserts a unit of twenty-seven members. Obviously the twelve cards produced at the hearing did not constitute a majority of the twenty-seven members the Union claimed constituted the appropriate unit at the time of its alleged demand. The interval of not to exceed three days between the letter and the election petition was too short a period to allow the employer time to investigate and respond. This is particularly true as the record shows that union demands were routinely submitted by the Bloomington unit to Wards’ central office at Chicago. We recognize that the filing of an election petition does not result in an automatic waiver of a bargaining demand. See Colson Corp. v. N. L. R. B., 8 Cir., 347 F.2d 128, 138. In our present case, the absence of any offer to prove majority status in any manner by the Union and the absence of any follow-up upon its ambiguous demand affords the employer a reasonable basis for believing that the Union was not pressing its demand for recognition apart from its pending petition for an election. As pointed out in Fort Smith Broadcasting, supra, there is a burden on the union to establish its majority status. Upon the record here, Wards upon the basis of its interrogation of its employees, its knowledge of unsuccessful prior attempts to organize the employees, and the absence of proof of union authorization, or an offer thereof, affords a basis for a reasonable doubt on the part of Wards that the union represented a majority of its employees. We hold that the letter quoted did not constitute an adequate demand for recognition or for bargaining and that substantial evidence is lacking to support a finding that the Union has met the burden imposed upon it to establish that the employer’s failure to recognize the Union was not based upon a good faith doubt that the Union represented a majority of its employees in an appropriate unit. Such determination makes it unnecessary for us to reach or consider other defenses urged to the § 8(a) (5) charge. The § 8(a) (3) Violation as to Bratsch. The Board by its order found employee Bratsch was diseriminatorily discharged in violation of § 8(a) (3) and ordered him reinstated with back pay. Wards has not sought review of such order. Enforcement of this order is asked in the Board’s cross-petition. We find no challenge by Wards to the enforcement of this part of the order. We find there is no issue before us with respect to the validity of the § 8(a) (3) portion of the order and that the Board is entitled to the enforcement of such portion of the order. The Board’s order is set aside in all respects except with respect to the determination as to Bratsch. The Board’s cross-petition is enforced with respect to its provisions as to Bratsch. In all other respects, the relief sought by the cross-petition is denied. . The union involved in this case is Local 149, of the Mail Order Retail Department Store and Warehouse Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, which we will refer to in the opinion as the Union. The Board also found Wards violated § 8(a) (3) by discharging employee Bratsch to discourage union activity. Such finding is not challenged by Wards in its petition for review but enforcement of such provision is included in the Board’s cross-petition. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_genresp2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. METROPOLITAN DEVICE CORPORATION v. CLEVELAND ELECTRIC ILLUMINATING CO. Circuit Court of Appeals, Sixth Circuit. December 6, 1929. No. 5132. D. Anthony Usina, of New York City (Richey & Watts, of Cleveland, Ohio, and Benjamin T. Rauber, of New York City, on the brief), for appellant. John B. Hull, of Cleveland, Ohio (Chas. E. Brock and Hull, Brock & West, all of Cleveland, Ohio, on the brief), for appellee. Before DENISON, MOORMAN, and HICKS, Circuit Judges. HICKS, Circuit Judge. Suit for infringement of claims Nos. 3 and 4 of Torchio Patent No. 1,172,322, granted February 22, 1916, for a protective device for eleetrie cable joints. The defenses were: (1) Lack of invention; (2) anticipation; and (3) noninfringement. The bill was dismissed for lack of invention. The court disregarded a disclaimer filed four days before the trial. We think it should have been permitted. That portion of the disclaimer disapproved is as follows: “ * * * And except as to insulating liquid which is fluid at ordinary working temperatures of such cables and in quantify sufficient to supply at all times the demands by the cable in use, and by the joint.” The criticism of the District Judge was that the limitation sought affected the quality and quantity of the insulating liquid, and from his viewpoint the specifications said nothing concerning either. We cannot yield thereto. We think the disclaimer may without violence readily stand upon the following descriptive matter in the specification, to wit: “I fill the sleeve and the reservoir with any suitable insulating oil or other liquid which is fluid at low temperature and preferably of a character which will combine with the material used in the body of the cable for permeating or imbedding the insulating wrappings. This liquid I preferably force into the sleeve 8 under pressure sufficient to drive it in the interstices of the cable ends and into the joint wrappings and fillings. When the introduction of the liquid is complete I permit it to All the reservoir 10 which is finally closed. The oil in the reservoir then serves to supply any deficiency in the sleeve caused by absorption and breathing of the cable or the disturbance of the conductors carrying sudden overload currents, so that the joint insulation is not only thoroughly permeated at the outset but continues submerged in a bath of insulating oil.” Again: “It is to be observed that the insulating fluid not only permeates the wrappings and fillings at the joint but also percolates into the insulation of the cable ends exposed in order to make the joint. This is of practical importance, because it often happens that during the making of the joint, the exposure of said ends permits of the permeating liquid used in the original manufacture of the cable to ‘bleed’ or run out and a consequent failure of insulation at these points ensues. This I have found to be the cause of breakdowns which were apparently unaccountable. The new fluid put into the joint sleeve supplies this loss and effectually prevents difficulty.” The specifications fairly set forth the quality of the insulating compound. It is: “Fluid at low temperature.” Any liquid, fluid at low temperature, is necessarily “fluid at ordinary working temperatures,” and the disclaimer therefore sets up no new claim as to quality. The same is true as to the quantity of the liquid and the purpose of its use, to wit: “Quantity sufficient to supply at all times the demands made by the cable in use and by the joint.” The specifications fairly call for a quantity sufficient to fill the sleeve and the supplying reservoir so that the joint insulation shall not only be continuously submerged in the oil, but that the amount drawn from the sleeve by the absorption and breathing of the cable shall be correspondingly restored to the sleeve from the reservoir. The record carries no suggestion of any intent to broaden the claims beyond the specification (tit. 35, § 65, U. S. C. [35 US CA § 65]), or any idea of obtaining the benefit of a reissue. We think the effect of the disclaimer is to clear up an awkwardly worded, and therefore a somewhat ambiguous, description in the specification. See Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 436, 22 S. Ct. 698, 46 L. Ed. 968; Simplex Ry. Appliance Co. v. Pressed Steel Car Co. (C. C. A.) 189 F. 70, 72. We also think that the disclaimer was not unreasonably delayed. As stated in Sessions v. Romadka, 145 U. S. 29, 12 S. Ct. 799, 801, 36 L. Ed. 609: “The power to disclaim is a beneficial one, and ought not to be denied except where it is resorted to for a fraudulent and deceptive purpose.” In Excelsior Furnace Co. v. Williamson Heater Co., 269 F. 614, 619 (C. C. A. 6), the disclaimer was! allowed after decision on appeal. See, also, N. O. Nelson Mfg. Co. v. F. E. Meyers & Bro. Co., 29 F.(2d) 968, 969 (C. C. A. 6). The view we take is that the matter of disclaimer was within the discretion of the patentee to be reasonably exercised — “a matter of policy” — [Permutit Co. v. Wadham, 13 F.(2d) 454, 457 (C. C. A. 6)], and we think there was sufficient doubt as to whether claims 3 and 4, as originally written, were anticipated to justify the seeming delay. Walker on Patents (2d Ed.) § 255. As to invention: The necessity therefor was great. In high voltage cables, i. e., cables carrying in excess of 15,000 volts, the dielectric loss from faulty insulation, with the resultant destruction of the wrappings of the cable and the breaking down of the joints, was serious. Torehio discovered that this loss was due in part to the “bleeding” of the insulating compound from the exposed cable ends during installation. He also discovered that the cable “breathed” or “sueked,” that is, that while in use the heat expanded it and that it correspondingly contracted while cooling; that this bleeding and expansion of the cable forced the insulating compound from the interstices of the pervious insulating wrappings and fillings, permitting dielectric loss and' structural damage. The problem was to restore this lost insulation:. The teaching had been that the insulating compound in the joint should not be soft enough to flow. The thought was that the compound should not be permitted to escape and leave the joint unprotected. Torehio substituted a liquid insulating compound for the compound with a low melting point theretofore in use in the cable sleeve. Torehio’s liquid compound would and did, especially under pressure, flow ¡along the cable length between the conductors and the leaden sheath and refill the empty cells of the pervious insulation. This was new and useful and was a commercial success. It was not a mere refinement of the former method; it was a reversal of it. We think it was somewhat beyond the skill of an expert and amounted to patentable invention. Gear Grinding Mach. Co. v. Studebaker Corp., 270 F. 934, 935 (C. C. A. 6). Nor was plaintiff’s invention anticipated by the prior art. The cable, the insulating compound, the sleeve with its soldered joint, and possibly the cable joint construction, were all old, but they were not old in combination. In the new combination they produced a new result and therefore were not anticipated. Webster Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Detroit Carrier & Mfg. Co. v. Dodge Bros., 33 F. (2d) 743, 747 (C. C. A. 6); Michigan Carton Co. v. Sutherland Co., 29 F.(2d) 179, 183 (C. C. A. 6); Ferro Concrete Constr. Co. v. Concrete Steel Co., 206 F. 666, 669 (C. C. A. 6); Kellogg Switchboard & Supply Co. v. Dean Elec. Co., 182 F. 991, 998 (C. C. A. 6). We have examined the prior art references, but review here only those discussed in defendant’s brief: First. The Brooks-Hunt group — United States patents to Brooks, No. 165,535 and No. 23 0,986, respectively, and the British patent to Hunt, No. 4828, communicated from Brooks. These at least approach a nonanalogous art. They do not deal with the modem high voltage cable. They are concerned only with low voltage telegraph wires separately insulated and drawn through iron pipes. They were abandoned as useless long before the advent of the unitary cable with the leaden sheath. Second. British patent No. 31,932 to Abel. This does not involve such a cable as does Torehio. It deals with a cable composed of a central conductor and concentric conductors insulated from each other and with the manner of joining the conductors at the cable ends and when so joined then with joining similar cable ends. The insulating fluid in the sleeve does not contact with the joints. They are protected by impervious caoutchouc. Third. British patent to Ferranti, No. 16,237. This discloses a conductor composed of concentric metal tubes. It in no sense deals with joint construction. Fourth. British patent to Watson, No. 29,756. The District'Judge had substantial basis for doubting whether Watson was prior to Torehio. But, independent thereof, it is clear that the Watson patent does not anticipate even if earlier. It discloses a cable in which the conductors are helically wound in paper wrapped twine, thus forming continuous ducts or channels for the insulating liquid throughout the cable length. It does not disclose joint construction or joint insulation or teach the method of uniting the joint box or sleeve with the cable. Infringement. The question of infringement is not difficult. • The striking similarity of the devices as illustrated by the drawings and description of defendant’s joint as defined in plaintiff’s exhibit 7 is conclusive upon the matter of construction. The defense that the viscosity of the insulating compound used, in defendant’s joint prevents it from oozing or flowing into and through the cable is not persuasive, in view of defendant’s admission that this compound, normally of the consistency of vaseline or jelly, did, under stress, escape from the reservoirs to the extent of collapsing them, and that for a time it was necessary to periodically refill the joints. Defendant advances no explanation of what had become of the lost compound. There is none, except that the working temperature of the cable heated it and the combined action of the pressure from the reservoir and the "breathing” or “sucking” of the cable during contraction drew it into the cable length. The word “fluid” is not necessarily to be defined with the extreme meaning permitted by the dictionary. Such words are to be given a reasonable interpretation in view of the association. Clipper Belt Lacer Co. v. E-W Co., 237 F. 602, 605 (C. C. A. 6); Farrington v. Haywood (C. C. A.) 35 F.(2d) 628, decided November 13, 1929. Finally, upon the above views, we conclude that the Torchio patent, No. 1,172,322, was valid and infringed, and the decree is therefore reversed, with directions to enter a new decree in accordance with this opinion. “3. An electric cable, comprising a sheath, a line conductor having a joint, a body of pervious insulating material inclosing said joint, the said sheath being removed for a distance sufficient to expose said pervious body, a sleeve of impervious material of greater diameter than said body, inclosing the same and hermetically united at its ends to said cable sheath, and an insulating fluid adapted to permeate said pervious body contained in the space between said body and said sleeve.” “4. An electric cable, comprising a sheath, a line conductor having a joint, a body of pervious insulating material inclosing said joint, the said sheath being removed for a distance sufficient to expose said pervious body, a sleeve of impervious material of greater diameter than said body, inclosing the same and hermetically united at its ends to said cable sheath, a receptacle communicating with the interior of said sleeve, and an insulating fluid adapted to permeate said pervious body contained in said receptacle and the space between said body and said sleeve.” “No. 1,172,32¡2. — Philip Torehio, New Xork, N. X. Protective Device for Electric-Cable Joints. Patent dated February 22, 1916. Disclaimer filed February 11, 1927, by the assignee, Thomas E. Murray. “Hereby makes disclaimer of the improvement described except for electric cables, which comprise a line conductor, insulating wrappings permeated with insulating compound and a sheath of flexible inelastic metal constituting a unitary product of manufacture and commerce which is portable and capable of being drawn through conduits; and except as to an insulating liquid Which is fluid at ordinary working temperatures of such cables and in quantity sufficient to supply at all times the demands made by the cable in use, and by the joint.” Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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. John Francis CLINE, Appellant, v. UNITED STATES of America, Appellee. No. 18942. United States Court of Appeals Eighth Circuit. May 22, 1968. D. M. Station, Boone, Iowa and Don J. Wilson, West Des Moines, Iowa, for appellant. Claude H. Freeman, Asst. U. S. Atty., Des Moines, Iowa, for appellee; James P. Rielly, U. S. Atty. and Jerry E. Williams, Asst. U. S. Atty., Des Moines, Iowa, on the brief. Before VAN OOSTERHOUT, Chief Judge, BLACKMUN, Circuit Judge, and VAN PELT, District Judge. VAN OOSTERHOUT, Chief Judge. Defendant John Francis Cline was indicted on a charge of robbing by force the federally insured Kellogg Savings Bank of Kellogg, Iowa, on or about February 14, 1967, taking $16,054 in money, and further charging that defendants in committing such act did assault and put in jeopardy the lives of Raymond W. Welle and Pauline Welle by use of dangerous weapons, to wit, pistols, in violation of 18 U.S.C.A. § 2113(d). Gerald George Weir and David Lee Grandstaff were jointly indicted with the defendant upon such charge. Cline, who will hereinafter frequently be referred to as defendant, entered a plea of not guilty. His motion for a separate trial was granted and he was tried and convicted by a jury. His post-conviction motions were overruled. Cline was sentenced to fifteen years imprisonment with the provision that he be eligible for parole at any time under 18 U.S.C.A. § 4208(a) (2). This is a timely appeal from such conviction and sentence. At all times here material, Raymond Welle was cashier and his wife, Pauline Welle, was assistant vice president of the Kellogg Savings Bank, a federally insured bank. About 9 p. m. on February 13, 1967, three men carrying pistols entered the Welle home at Kellogg, Iowa. Mrs. Welle was then at home alone. Mr. Welle, who had been working in the bank that night, returned home about 10 p. m. and was met at the door by one of the intruders armed with a gun. Mr. Welle was forced to go to the bank and open the cash vault. He was accompanied by Weir. Cline and Grandstaff remained at the Welle home keeping Mrs. Welle under surveillance. The Welles were told, “I have got a gun, don’t do anything.”, and were further told if Weir was not back within twenty minutes with the money, “It is going to be bad for Mrs. Welle.” The vault at the bank was opened; Weir took the contents amounting to $16,054. Weir and Welle returned to the Welle home. The Welles were tied hand and foot and adhesive tape was put over their mouths, whereupon the robbers left with the stolen money. It was past midnight when they left. The robbers did not wear masks. Each wore gloves at all times. Cline wore a stocking cap which was pulled down over his sideburns and ears. Cline, Grandstaff and Weir were each positively identified by both Mr. and Mrs. Welle as the intruders. Cline was identified by his general size and appearance, his body build, his nose and mouth, his long pointed chin and his rough complexion from which it appeared he had some kind of skin trouble. Additionally, Mr. Welle who heard Cline testify identified him by his voice. Cline testified as a witness. He admitted knowing about the contemplated robbery but denied knowledge of the exact time thereof or any participation therein. His testimony, supported by alibi witnesses offered, was that he was at the George Weir home in Des Moines at the time of the robbery, such home being at a considerable distance from Kellogg. He testified that he arrived at the George Weir home about 9 p. m. and that he spent the rest of the night there. Such testimony was supported by various alibi witnesses, most of whom were related to or connected with one or more of the indicted defendants. Cline testified that Weir, Grandstaff and Mike See, whom Cline claims was the third robber rather than he, returned to the Weir home about 2 a. m. on February 14 and that they had with them a bag of money which they counted out in the amount of $16,000. Defendant testified that he then played poker with the robbers. George Weir left for California on the morning of February 14 and upon arrival stayed at the home of his brother Larry. Cline as a witness stated that on February 15 he received information from a friend that the FBI wanted to interview him. He flew to California the next day, using an assumed name. Upon arrival there, he went to Larry Weir’s home where George Weir was staying. Cline and George Weir were arrested at the Larry Weir home on February 18. The evidence will be discussed further to the extent necessary during the course of the opinion. Defendant Cline urges that he is entitled to a reversal of his conviction by reason of the following asserted errors committed at his trial: I. The prosecution’s attack upon defense counsel’s honesty. II. The Welles’ identification of the defendant while in a cell in jail in violation of defendant’s Fifth and Sixth Amendment rights. III. The allowance of evidence concerning defendant’s exercise of his right to remain silent. IV. The admission in evidence of a large sum of money in George Weir’s billfold at the time of his arrest without proof of Weir’s prior impecuniosity. V. The overruling of defendant’s motion for acquittal based upon insufficiency of the evidence to support a conviction. VI. The refusal of the court to require the Government to produce a report made by FBI Agent Bugas covering his investigation of the case. A careful study of the record in this case satisfies us that the court committed no prejudicial error in defendant’s trial and that the judgment should be affirmed. The reasons for such conclusion are set out in our discussion hereinafter of the points urged, in the order above stated. I. During the course of the redirect examination of Mrs. Welle, government counsel gave the witness some type of writing and asked her to read a specified portion thereof, and indicate how she identified the defendant by means of a picture of him. Defendant’s counsel on cross-examination had attempted to use prior claimed inconsistent testimony to shake the identification. Defendant objected to the question, whereupon the following colloquy took place: “MR. FREEMAN: You employed something other than complete honesty ! MR. WILSON: Your Honor, I move for a mistrial on that point. THE COURT: Well, you can argue your case later. MR. WILSON: I have never been accused of anything improper in court in my life. THE COURT: Well, now, gentlemen, you are not going to argue your case now. You can argue it later. Get your exhibit back and let the witness testify from her memory. That’s all we expect of her.” The trial court in effect sustained the objection to the question and overruled the motion for mistrial. At the close of all the evidence, defendant renewed his motion for mistrial upon the ground of the prejudicial effect of the remark heretofore set out and upon other grounds. In overruling the motion, the court stated: “The Court does not consider that there were any comments of plaintiff’s counsel here that were prejudicial. There was a certain amount of discussion between counsel sometimes in the heat of battle. However, I found nothing and I find nothing offensive in this record in that regard.” We consider the criticized remark of the prosecutor to be an improper one and we feel that the trial court might well have admonished the jury to disregard it. No request for an admonition was made. We have recognized that counsel in the heat of battle often say things that should not have been said and that the prejudicial error test should be applied in determining whether such conduct has resulted in such unfairness and prejudice as to deprive defendant of a fair trial. See Keeble v. United States, 8 Cir., 347 F.2d 951, 956; Isaacs v. United States, 8 Cir., 301 F.2d 706, 737. Considerable discretion must be left in the trial court who saw and heard the entire proceeding and thus had the feel of the case in determining whether an asserted error is prejudicial. Cochran v. United States, 8 Cir., 310 F.2d 585, 589; Isaacs v. United States, supra. We are not persuaded that the isolated remark of the government attorney made early in the trial had any substantial effect upon the verdict of the jury. The trial court did not abuse its discretion in denying the motion for a mistrial. II. Mr. and Mrs. Welle were taken to the jail cell in which defendant alone was confined for the purpose of determining whether they could identify the defendant as one of the bank robbers. Prior to that time, the Welles had been shown some pictures, including that of the defendant in a high school annual and some blown up pictures of the defendant. Defendant was not represented by counsel in such proceeding nor was counsel waived. Defendant was not exhibited in a lineup. Defendant urges that such confrontation violates rights guaranteed by the Fifth and Sixth Amendments to the United States Constitution under the teaching of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199. Such cases were all decided on June 12, 1967. Stovall squarely holds that the right to be represented by counsel at lineup proceedings, which right was established by Wade and Gilbert, applies only to confrontations for identification purposes conducted in the absence of counsel after June 12, 1967. Defendant was convicted by a jury on May 26, 1967. Consequently, the Sixth Amendment defense based on right to counsel at the lineup is not open to the defendant. Still open, however, is defendant’s right to prove “that the confrontation resulted in such unfairness that it infringed his right to due process of law.” Stovall v. Denno, supra, at 299, 87 S.Ct. at 1971. The confrontation must be “so unnecessarily suggestive and conducive to irreparable mistaken identification” based upon “the totality of the circumstances surrounding it” that due process is denied. Id. at 302, 87 S.Ct. at 1972. In Stovall, the Supreme Court upheld a hospital bed identification of the defendant, who was the only person presented. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Supreme Court applied the same test to a federal prosecution as it had in the ha-beas corpus review of the state court conviction in Stovall. Before apprehension, Simmons was identified from photographs and the witnesses later made in-court identifications. After examining the circumstances, discussing proper identification procedure, pointing out the hazards inherent in improper procedures, and admitting that the identification process was far from ideal, the Supreme Court determined the procedure was not such as to deny Simmons due process of law. The conviction was affirmed. The Court states: “[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302 [87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199], and with decisions of other courts on the question of identification by photograph.” 390 U.S. 377, 384, 88 S.Ct. 967, 971. Facts significant in Simmons include the statement that the robbery took place in broad daylight; that the witnesses were able to plainly see the person identified as the robber for periods up to five minutes, and that the witnesses, notwithstanding vigorous cross-examination, entertained no doubt about the validity of their identifications. In our present case, the Welles had an opportunity to view the robbers, who wore no masks, in an amply lighted room for approximately three hours. The Welles remained firm in their identification based upon observations made when the intruders were in their home, despite vigorous cross-examination. The identifying witnesses in our present case were reliable, respectable, well-educated people holding executive positions, and were not persons likely to be coerced by officers into making a false identification. It is also significant that the Welles also positively identified George Weir and David Grandstaff as intruders, and as hereinabove pointed out, defendant in his testimony in effect pointed them out as the robbers of the bank. As previously noted, such defendants have subsequently been convicted of the charge upon their pleas of guilty. We hold that there is no substantial evidence in the record before us which would support a finding that the identification of the suspects was coerced by the investigating officers. We hold that when the standards prescribed in Stovall and Simmons are applied to the facts of the present case, defendant has failed to establish that his right to due process was denied him at his trial, and defendant has likewise failed to establish any prejudicial error in the identification procedure which would entitle him to a reversal. III. Defendant’s contention that his right to remain silent has been violated to his prejudice lacks merit. Defendant voluntarily testified as a witness at his trial. On cross-examination, he stated that he told Agent Kidwell in an interview that he did not rob the Kellogg bank. Kidwell, called as a rebuttal witness, testified that the defendant when interviewed by him on February 20, 1967, was specifically asked if he had robbed the Kellogg bank and that the defendant refused to answer such question. No objection was interposed to such foundation testimony; thus no foundation has been laid for the preservation of the error for review. Moreover, it is conceded that prior to the interview above referred to, the defendant after a full explanation of his rights signed a waiver of his right to remain silent. Defendant by taking the witness stand at the trial and by giving testimony that he told the agent that he had not robbed the bank, opened the door to the rebuttal testimony. See Grunewald v. United States, 353 U.S. 391, 419-420, 77 S.Ct. 963, 1 L.Ed.2d 931. In our present case, the defendant is claiming that he did not make a statement to the agent that he was asserting his right to remain silent at the time of the interview. Thus defendant waived his right to remain silent on the subject matter under discussion by claiming that he told the agent that he had not participated in the robbery. By offering himself as a witness at the trial, he subjected himself to the usual rules of cross-examination and impeachment. See Vitali v. United States, 1 Cir., 383 F.2d 121, 123. IV. We are convinced that no prejudicial error was committed in receiving in evidence Exhibit 18, a billfold bearing George Weir’s name containing two $100 bills, which was seized at the apartment at the time of the arrest of George Weir and the defendant. Absent a showing of impecuniosity, the finding of such amount of money would have little weight in establishing guilt. Defendant has not in any manner pointed out how he was prejudiced by the reception of this evidence. Defendant as a witness had previously testified that Weir and his associates brought into Weir’s home the $16,000 proceeds of the robbery. In the light of such evidence, the finding of $200 in Weir’s billfold could not in our view have any prejudicial effect upon the defendant. V. Defendant urges that the court erred in denying his motion for acquittal made at the close of the government’s case. After such motion was overruled, the defendant offered evidence in his own behalf. By so doing, he waived the motion for acquittal made at the close of the government’s case. United States v. Calderon, 348 U.S. 160, 164, 75 S.Ct. 186, 99 L.Ed. 202. Defendant did renew his motion for acquittal at the close of all of the evidence and such motion is entitled to consideration. The sufficiency of the evidence challenge, however, must be based upon the entire record including the evidence of the defendant. The positive identification of the defendant by both the Welles as one of the bank robbers alone is sufficient to sustain the conviction. We have heretofore, at point II, rejected defendant’s contention that the reception of such evidence violated defendant’s constitutional rights. Since such evidence alone is enough to support the conviction, detailed discussion of circumstantial evidence is unnecessary. VI. Lastly defendant urges that the court erred in not requiring the government to produce a report made by FBI Agent Bugas on February 20,1967, covering his investigation of this case. Such statement, court Exhibit 1, was examined by the court in camera. It has been certified to us and we have examined the exhibit. The substance of the report is that Bugas searched the Welles’ house and its immediate surroundings for finger prints or other evidence that could be used to connect defendant with the invasion of the Welles’ home, and that no such evidence was found. The government turned over all other reports of Bugas to the defendant. With respect to Exhibit 1, the government urged that pursuant to 18 U.S.C.A. § 3500(c) the production of the statement was not required because the statement does not relate to the subject matter of the testimony of the witness. The trial court upheld such contention, stating in part: “The point is, and the government takes the position and the Court agrees, that the only report that has not been exhibited to counsel for the defendant is the report concerning the search of the house, and this witness has not testified with regard to any search of the house he made, except I think in answer to defense counsel’s question he stated that there might have been a statement concerning his search of the house. But he has not testified as to finding anything in connection with his search of the house.” We find no evidence in the record that any finger prints or other identifying material was found in the Welle home. The agent did not testify about his search of the Welle home and there is no testimony in the record which is inconsistent with the statements contained in court Exhibit 1. In Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 309, 7 L.Ed.2d 256, the Court holds: “It is equally clear that, notwithstanding the fact that the Sullivan and Ondrejka receipts were ‘statements’ within the meaning of § 3500 and were demanded under that section, petitioner would not be entitled to a new trial because of the nonproduction of those receipts if in truth they do not relate to the direct testimony of those witnesses inasmuch as § 3500(c) requires ‘the court [to] excise the portions of [the] statement which do not relate to the subject matter of the testimony of the witness.’ ” See United States v. Dickerson, 2 Cir., 347 F.2d 783, 784; United States v. Wenzel, 4 Cir., 311 F.2d 164, 171. Moreover, the harmless error rule applies to Jencks Act statements under appropriate circumstances. Killian v. United States, supra; United States v. Dickerson, supra. While like the trial court we are unable to understand why the government refused to produce and give to the defendant court Exhibit 1, as such statement contains nothing contrary to the government’s case, we are satisfied that no prejudicial error was committed in refusing to order the delivery to the defendant of the statement contained in court Exhibit 1. In conclusion, we hold that defendant has failed to demonstrate that any prejudicial error was committed at his trial. The case was fairly tried and submitted to the jury. No error is claimed with respect to the instructions. The defendant has had in all respects a fair trial. The judgment is affirmed. . Weir and Grandstaff subsequent to defendant’s trial and conviction entered pleas of guilty to the indictment and they were each convicted and given a twenty; year prison sentence. Neither Weir nor Grandstaff testified at Cline’s trial. 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_usc2sect	1988	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". Wasena WOOTEN, Appellant, v. CLIFTON FORGE SCHOOL BOARD; P. E. Truitt, Jr.; Irene Williams; Elvin Nicely; Michael R. Scott; Aubrey C. Hall; George J. Kostel, Executor of the Estate of Peter Kostel; Janie Barnett and Julius S. Garbett, Appellees. Wasena WOOTEN, Appellee, v. CLIFTON FORGE SCHOOL BOARD; P. E. Truitt, Jr.; Irene Williams; Elvin Nicely; Michael R. Scott; Aubrey C. Hall; George J. Kostel, Executor of the Estate of Peter Kostel; Janie Barnett and Julius S. Garbett, Appellants. Nos. 80-1198, 80-1199. United States Court of Appeals, Fourth Circuit. Argued April 7, 1981. Decided July 21, 1981. Dennis Montgomery, Roanoke, Va., for Wasena Wooten. Joseph A. Matthews, Jr., Roanoke, Va. (William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., on brief), for Clifton Forge School Board, et al. Before WINTER, Chief Judge, BRYAN, Senior Circuit Judge, and BUTZNER, Circuit Judge. BUTZNER, Circuit Judge; In this suit brought pursuant to 42 U.S.C. § 1983, Wasena Wooten appeals the order of the district court dismissing his claim against the Clifton Forge School Board. Wooten asserts that the Board violated his fourteenth amendment rights to procedural due process when it reassigned him from the position of principal at Clifton Forge High School to the position of teacher. The Board appeals the district court’s denial of its motion for attorneys’ fees pursuant to 42 U.S.C. § 1988. We affirm the district court on both issues. I Wooten was the first and only black principal to serve at Clifton Forge. He received a “continuing” contract after the 1976-77 school year. In April, 1979, the Board notified Wooten that he had been reassigned to a teaching position for the next school year. The reassignment reduced Wooten’s salary by approximately 25%. Wooten, through his counsel, requested written explanation and an opportunity to be heard regarding this reassignment. He was advised through the Board’s counsel that his request was denied, as the Board believed state law did not require either a hearing or a statement of reasons. Wooten then brought this suit in the district court, alleging first that the procedures by which he was reassigned failed to satisfy the due process requirements of the fourteenth amendment, and second, that the Board had unconstitutionally discriminated on the basis of race in its reassignment. Prior to trial, Wooten moved for summary judgment on the procedural due process claim. The district court denied the motion but reserved the right to reconsider it. The race discrimination claim was tried by a jury, which returned a special verdict that race was not a substantial or motivating factor in the Board’s decision. The district court did not submit the due process claim to the jury because it held that Wooten “was not entitled under the laws of Virginia, to be advised for the reason for the reassignment, nor was he entitled under the law to a hearing with regard to the reassignment.” “Furthermore,” the court continued, “under Virginia law, a school board has the right to reassign a principal to a teaching position, with a reduction in salary, without cause, as long as notice is given to the principal of the reassignment by April 15.” After the jury returned its verdict, Wooten renewed his motion for summary judgment on the due process claim. The district court again denied the motion and entered judgment for the Board. Wooten appeals only the dismissal of the procedural due process claim. He does not challenge denial of his complaint of racial discrimination. II An individual seeking to invoke the protections of the due process clause of the fourteenth amendment first must establish that he has been deprived of a liberty or property interest protected by that clause. See Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Only when such interests are implicated must the state provide the individual with a hearing. Wooten alleges that the Board’s action deprived him of both property and liberty interests. The due process clause does not create property interests. To determine whether an individual has such an interest, we must look to “existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In the specific context of educational employment, Roth held that there is no property interest in a one-year teaching contract having no renewal provision. There is, however, a protected property interest if a contract, either expressly or implicitly, provides for continued employment that can only be terminated for good cause. See Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). In this case, Wooten was not dismissed from employment but instead was demoted with a cut in pay. The critical issue, therefore, is whether he had a legitimate entitlement to continued employment as a principal, absent good cause for reassignment. To answer this question, we must look both to the understanding between the Board and Wooten, as disclosed by their contract, and to the state law governing employment of school principals. The contract stipulates that it is “continuing”. It provides that Wooten could be “dismissed, suspended, or placed on probation for cause as provided by law.” The contract is silent on the specific issue whether Wooten could be reassigned without cause to a teaching position at reduced pay. Arguably, the contract, standing alone, supports Wooten’s contention, but it must be read in conjunction with state law defining its terms. The relevant statute at the time of the Board’s action was § 22-217.3 of the 1950 Virginia Code, as amended in 1976, which provided in part: Continuing contract status acquired by a principal or supervisor shall not be construed (i) as prohibiting a school board from reassigning such administrative or supervisory personnel to a teaching position if notice of reassignment is given by the school board by April fifteenth of any year or (ii) as entitling any such principal or supervisor to the salary paid him as principal or supervisor in the case of any such reassignment to a teaching position. We agree with the district court that “continuing contract status” for principals, as statutorily defined, did not encompass a requirement that good cause be shown for reassignment. Indeed, § 22-217.3 of the Virginia Code specifically removed any implicit bar to Wooten’s summary reassignment that otherwise might be inferred from his continuing contract. It is this statute that distinguishes this case from Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Accordingly, Wooten has not shown a property interest, derived either from his contract or state law, upon which he can premise a constitutional claim that prior to reassignment he was entitled to a hearing and statement of reasons. See Bishop v. Wood, 426 U.S. 341, 343-47, 96 S.Ct. 2074, 2076-78, 48 L.Ed.2d 684 (1976). Ill Nor has Wooten shown that the Board’s action deprived him of a liberty interest in his reputation. The Court acknowledged in Roth, 408 U.S. at 572-75, 92 S.Ct. at 2706-08, that denial of tenure to a college teacher might make him less attractive to other employers. Nevertheless, it stressed that the liberty concept could not be stretched so far as “to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” The Court concluded that in the absence of any public charge by the employer that might seriously damage the teacher’s standing and associations in his community, the decision to deny tenure and release the teacher did not deprive him of any liberty interest in his reputation. Similarly, in Bishop, 426 U.S. at 348, 96 S.Ct. at 2079, the Court decided that no protected interest is implicated by the “discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge.” Wooten has not identified any specific act of the Board, other than the statutorily authorized act of reassigning him, that damaged his reputation. Although the Board’s action was fully explored in subsequent legal proceedings, Wooten has not shown that the Board voluntarily disclosed to the public the reasons for his reassignment prior to these proceedings. Because Wooten did not establish a protected liberty interest, the district court did not err in summarily dismissing this aspect of his due process claim. IV We find no error in the district court’s denial of the Board’s motion under 42 U.S.C. § 1988 for attorneys’ fees. Pursuant to such a statute, a district court may in its discretion award attorneys’ fees to a prevailing defendant if it finds that the plaintiff’s action was “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978). The record does not support the Board’s claim that the district court abused its discretion in deciding that this case did not warrant the award of attorneys’ fees. AFFIRMED. This statute has since been amended. See Va. Code Ann. § 22.1-294 (1980 rep. vol.). Neither party suggests that the amendment should be applied retroactively. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number. Answer:
songer_majvotes	9	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. Regis Ann GOULD, as Parent Guardian and next of friend of Aaron Russell Gould and Adrienne Marie Gould, Regis Ann Gould, as Special Administrator of the Estate of Gary Francis Gould; Regis Ann Gould, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; Public Health Service, Defendants-Appellees. No. 88-3091. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1990. Decided June 8, 1990. As Amended June 18, 1990. Joseph Cornelius Ruddy, Jr., Hyattsville, Md., for plaintiffs-appellants. Lowell V. Sturgill, Jr., U.S. Dept, of Justice, Washington, D.C., for defendants-ap-pellees. Breckinridge L. Willcox, U.S. Atty., Juliet A. Eurich, Asst. U.S. Atty., Baltimore, Md., Sally K. Trebbe, Office of the Gen. Counsel, Dept, of Health and Human Services, on brief, Washington, D.C., for defendants-appellees. Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc. CHAPMAN, Circuit Judge: Regis Ann Gould filed this action individually, and in the dual capacity as special administrator of the estate of her late husband, Gary Francis Gould, and as a parent guardian and next friend of her minor children, Aaron Russell Gould and Adrienne Marie Gould, seeking damages for the alleged wrongful death of Gary Francis Gould resulting from alleged medical malpractice. The district court granted the defendants’ motion for summary judgment and found that the claim was time barred under 28 U.S.C. § 2401(b). Appellant asserts that her claim was timely because such claim did not accrue until she learned that one of the treating physicians was a federal employee. We find that the cause of action accrued when the plaintiffs learned of both the existence and the cause of the decedent’s injury, and we affirm. I On August 27, 1980, the decedent, Gary Francis Gould, began experiencing headache, fever, nausea, stiff neck and other symptoms of illness. These conditions persisted and on the morning of August 30, 1980, he went to the South County Family Health Care Corporation in Anne Arundel County, Maryland, and was treated by James Kevin O’Rourke, M.D., a commissioned officer of the United States Public Health Service assigned to the National Health Service Corps and working at the health center. The Commissioned Corps of the Public Health Service is established and administered pursuant to the Public Health Service Act, 42 U.S.C. §§ 204 et seq. The National Health Service Corps is established pursuant to 42 U.S.C. § 254d. The purpose of the Corps is to provide health care providers in areas designated as health manpower shortage areas, and the Public Health Service is an agency in the Department of Health and Human Services. After being treated by Dr. O’Rourke, Mr. Gould returned home, but his condition deteriorated. He called Dr. O’Rourke again, and on the afternoon of August 30, 1980, he was admitted to the Anne Arundel General Hospital where Dr. Barry R. Nathan-son, M.D., a civilian employee of the United States Public Health Service in the National Health Service Corps, consulted with Dr. O’Rourke about Mr. Gould’s condition. Each of these doctors was a federal employee assigned to the South County Family Health Care Corporation in a health manpower shortage area. Numerous tests were performed with negative results and it was thought that the symptoms were from a viral syndrome. However, when a rash developed on September 3, Dr. O’Rourke suspected Rocky Mountain Spotted Fever, and a consultation with an infectious disease specialist confirmed this diagnosis. Antibiotic therapy was immediately begun, but Mr. Gould died at the hospital on September 4, 1980. During the course of treatment, particularly prior to the diagnosis of Rocky Mountain Spotted Fever, members of the Gould family complained about the deterioration in Gould’s condition and were advised that the condition was a virus. In a letter of August 8, 1983, plaintiffs’ counsel requested information from the Department of Public Health regarding the “exact work status” of Dr. O’Rourke. The Department of Health and Human Services (HHS) was promptly notified of this request and responded to the inquiry. ' On September 2,1983, a HHS attorney notified plaintiffs’ attorney by telephone of Dr. O’Rourke’s status as a federal employee at the time he treated the decedent. The following day, plaintiffs’ counsel was advised by HHS that Dr. Nathanson was also a federal employee at the time of such treatment. Plaintiffs' attorney received written confirmation of Dr. O’Rourke’s employment status on September 26, 1983, and a similar notice of Dr. Nathanson’s status on December 16, 1983. The plaintiffs took no action against the United States at this time, but on September 2, 1983, within hours of the expiration of the claim under Maryland’s three-year statute of limitations, plaintiffs initiated a claim against the individual physicians before the Health Claims . Arbitration Board alleging negligent care and treatment of the decedent. On December 16, 1985, the action before the Health Claims Arbitration Board was dismissed upon a finding that the doctors were employed by the United States Public Health Service and the alleged wrongdoing fell within the scope of their employment, and they were not subject to suit in a state court or forum pursuant to 28 U.S.C. § 1346(b). In early August 1985, prior to dismissal of the claim before the Health Claims Arbitration Board, an administrative tort claim was presented to the Department of Health and Human Services, Division of Public Health Service, alleging negligence by .National Health Service Corp physicians in failing to expeditiously diagnose and treat Gary F. Gould for Rocky Mountain Spotted Fever. This claim was denied in August 1986 on the ground that it was barred by the statute of limitations applicable to claims prosecuted under the Federal Tort Claims Act, 28 U.S.C. § 2401(b). In February 1987, plaintiffs initiated the present action in the United States District Court for the District of Maryland. The defendants raised the bar of the two-year limitation provision contained in 28 U.S.C. § 2401(b). Plaintiffs countered that she had neither direct nor implicit knowledge of the status of the physicians as federal employees, and that the statute of limitations should be tolled until plaintiffs were made aware of the fact that the physicians were federal employees, because the exercise of due diligence would not have revealed this fact. The district court rejected this argument and found that the statutory period had expired, and that the court lacked jurisdiction as a matter of law. We agree and affirm. II It is well established that the United States Government, as sovereign, is immune from suit unless it consents to be sued. The terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Congress created a limited waiver of sovereign immunity in the FTCA. 28 U.S.C. §§ 2671-2680. This waiver permits suit only on terms and conditions strictly prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Although the FTCA gives limited consent to suits against the federal government for torts committed by its employees while acting within the scope of their official duties, the Act specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act. 28 U.S.C. §§ 2401(b), 2675(a); Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); West v. United States, 592 F.2d 487, 492 (8th Cir.1979). The applicable statute of limitation within the framework of the FTCA provides: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues_” 28 U.S.C. § 2401(b). This time limitation is jurisdictional and nonwaivable. Kielwien, 540 F.2d at 679. Statutes of limitation, which “are found and approved in all systems of enlightened jurisprudence,” Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a legislative determination that “even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). While affording plaintiffs what legislatures deem reasonable time to present claims, statutes of limitation give defendants and courts a degree of protection from having to confront controversies in which the search for truth may be thwarted by the loss of evidence, whether by the death or disappearance of witnesses, fading memories, loss of physical evidence, or the like. United States v. Manon, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468 (1971); Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Section 2401(b) represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government. The Supreme Court, in recognizing this balance, has instructed the judiciary to abstain from extending or narrowing § 2401(b) beyond that which Congress intended and thereby defeating its obvious purpose. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979). Applying these principles, federal courts with few exceptions have dismissed complaints where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiff’s failure to submit a claim in a timely manner was the result of the plaintiffs ignorance of the defendant’s status as a federal employee. Flickinger v. United States, 523 F.Supp. 1372, 1375 (W.D.Pa.1981). Courts have held that despite the harsh impact of this rule on plaintiffs, Wilkinson v. United States, 677 F.2d 998, 1001 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), and “strong equitable considerations notwithstanding, the two-year limitation period of 28 U.S.C. § 2401(b) cannot be tolled or waived.” Lien v. Beehner, 453 F.Supp. 604, 606 (N.D.N.Y.1978). See also United Missouri Bank South v. United States, 423 F.Supp. 571, 577 (W.D.Mo.1976) (limitation provision of FTCA not to be extended by implication or by equitable considerations). Although FTCA liability is determined “in accordance with the law of the place where the act or omission occurred,” 28 U.S.C. § 1346(b), federal law determines when a claim accrues. Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980); Portis v. United States, 483 F.2d 670, 672 n. 4 (4th Cir.1973); Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir.1987); Wehrman v. United States, 830 F.2d 1480, 1482-83 (8th Cir.1987). In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court reiterated that the general rule under the FTCA “has been that a tort claim accrues at the time of the plaintiff’s injury, “although in medical malpractice cases it is thought to extend “until the plaintiff has discovered both his injury and its cause.” Id. at 120, 100 S.Ct. at 358. The clear import of Kubrick is that a claim accrues within the meaning of § 2401(b) when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury. “This decision signifies a retreat from the expansive view of ‘accrual’ previously adopted by a number of the circuits, including the Fourth Circuit.” Dessi v. United States, 489 F.Supp. 722, 724 (E.D.Va.1980). Under Kubrick, the court concluded in Dessi, nothing more than knowledge of injury and causation is required for the cause of action to accrue. The action accrues even if the claimant believes that his injury was unavoidable and did not indicate negligent treatment. It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit. Id. at 725. See also Gilbert v. United States, 720 F.2d 372, 374 (4th Cir.1983) (“The Supreme Court has determined that a cause of action accrues within the meaning of [28 U.S.C.] § 2401(b) when a prospective plaintiff knows of both the existence of his injury and its cause.”); Dearing v. United States, 835 F.2d 226, 228 (9th Cir.1987) (“A medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes.”); Wehrman, 830 F.2d at 1483 (same). The question presented by this case is when did the plaintiffs’ claim “accrue” within the meaning of the FTCA? Did the cause of action accrue when plaintiffs learned both of the existence and cause of the decedent’s injury, or did it only accrue when plaintiffs also learned the legal identity of the alleged tort-feasors as federal employees? We hold that plaintiffs’ claim accrued, in accordance with Kubrick, on September 4, 1980, upon the death of Gary Francis Gould. Plaintiffs at this time were aware of the existence of the injury and its cause, including the identity and conduct of attending physicians. This sufficiently armed plaintiffs with the “critical facts” to investigate the claim and present it within the two-year statute of limitations. The plaintiffs argue that in addition to knowledge of the injury and its cause, Kubrick implies that a claim does not accrue until a plaintiff learns the legal identity of the alleged tort-feasor as a federal employee. The statute of limitation should be tolled, plaintiffs continue, when pertinent information such as knowledge of the injury or the legal identity of the tort-feasor is in the control of the putative defendant, unavailable to the plaintiff or at least difficult to obtain. Significantly, the legal identity of the tort-feasor was presumed in Kubrick. Nowhere in Kubrick is any reference to the legal identity of the tort-fea-sor. This rule has been considered and rejected in this Circuit. In Baker v. United States, 341 F.Supp. 494 (D.Md.1972), aff'd per curiam, No. 72-1708 (4th Cir. Nov. 30, 1972), it was held that an automobile negligence action filed in state court within the three-year Maryland limitation period but more than two years after the accident was forever barred pursuant to 28 U.S.C. § 2401(b). A defendant driver, who was acting within the scope of his government employment at the time of the accident, initially handled the claim through his insurance company and his own attorney. Some five years after the accident the defendant brought the claim to the attention of government officials, after which the government promptly removed the claim to federal court where the United States was substituted as the party defendant. The plaintiff did not discover until after the statute of limitations had run that the driver who allegedly caused the accident was a federal employee acting within the scope of his employment. “All cases cited or found,” the district court concluded, “have held that the [FTCA] two-year limitation period applies, and that such suits cannot be remanded to the state court to proceed against the government employee individually.” Baker, 341 F.Supp. at 495-96 (citations omitted). The court further stated: That result in the instant case seems unfair, since no one realized until too late that Smith was in the course of his employment by the government at the time of the accident. However, no facts which would ordinarily amount to an es-toppel against Smith, his insurer or the government have been shown. Other courts have applied the statute strictly against plaintiffs in circumstances which seem to be more favorable to the plaintiff than those in the cases at bar. See, e.g., Mann v. United States, [399 F.2d 672 (9th Cir.1968)]. If this case is appealed, I would be happy to be reversed. But under the statute and the authorities, I must dismiss the suits. Id. at 496. We affirmed this judgment of the district court. ■ In Wilkinson v. United States, 677 F.2d 998 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), a rented car driven by a sailor on business for the Navy collided with the plaintiffs automobile. At the time of the collision, the plaintiff knew that the other driver was employed by the Navy. There was no indication, however, that the plaintiff was aware that the driver was actually on government business. We rejected the plaintiffs assertion that the cause of action did not accrue until he learned that the sailor was acting within the scope of his employment at the time of the accident and thus was covered by the FTCA. Id. at 1000. Speaking for the majority, Judge Murnaghan emphasized that the government employee and government officials responded to the plaintiffs claim in a reasonable, timely and fair manner. Moreover, attorneys for the government in Wilkinson, like those in the case before us, “were not shown to have known that the accident had even occurred until a date more than two years after the accrual of the claim.... No less established is the fact that the Government has not behaved in any unfair way, and that, as between it and [plaintiff], the latter, or, more realistically, his counsel, brought about the consequences resulting from counsel’s inaction.” Id. at 1000-01. The same observations, it seems, could be made in the case at bar. In Henderson v. United States, 785 F.2d 121 (4th Cir.1986), a substitute U.S. mail carrier collided with the plaintiffs automobile. Although the plaintiff had reason to know that the vehicle which struck her may have been a government vehicle, she argued that her cause of action did not accrue until she ascertained that the driver was a federal employee. In rejecting the argument, we held that there was sufficient information available to the plaintiff to put her on notice that the other driver was an agent of the federal government. The rule which plaintiffs now propose would establish an exception that would change all precedents as to when a medical malpractice action accrues, and would be against the clear admonition in Kubrick that courts should carefully construe the statute of limitation for the FTCA so as not to extend the limited waiver of sovereign immunity beyond that which Congress intended. Id. 444 U.S. at 117-18, 100 S.Ct. at 356-57. Such a holding would greatly expand the rule that was unsuccessfully proposed by the dissent in Wilkinson, because it would place no burden upon a plaintiff or a plaintiffs attorney to exercise reasonable care, to investigate or to take any action to determine the employment status of an alleged tort-feasor. The well-established rule is that once a prospective plaintiff learns of his injury, he is on notice that there may have been an invasion of his legal rights and that he should investigate whether another may be liable to him. Zeleznik v. United States, 770 F.2d 20, 22 (3d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1513, 89 L.Ed.2d 913 (1986). While Wilkinson and Henderson, unlike Baker, arguably differ from the present facts because there was no indication that the defendants in the case sub judice were federal employees, Wilkinson and Henderson indicate that plaintiffs have an affirmative duty to inquire as to the legal identity of the defendant. There is no evidence that Mrs. Gould sought to ascertain or was denied access to information concerning the employment status of the treating physicians prior to the expiration of the limitations period. Neither is there evidence that the treating physicians “held themselves out as agents and employees of the private health facility” so as to mislead or deceive the plaintiffs or otherwise hide their legal identity as federal employees. Kubrick, Baker, Wilkinson and Henderson stand for the proposition that a cause of action accrues once the existence of an injury and its cause are known. The statute of limitations under the FTCA commences to run from the date of accrual and does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee. The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled. In the case at bar, however, there is no evidence that the government stalled the discovery process or otherwise blocked plaintiffs from obtaining information within the limitations period. Indeed, the evidence is to the contrary. While it is true that the employment status of the attending physicians was not made known to plaintiffs at the time treatment was given, it is also true that plaintiffs made no inquiry as to the physicians’ employment status until August 1983. When asked, the government responded promptly to plaintiffs’ request for this information. Unfortunately, such requests were not made until the statute of limitations had expired. The district court correctly observed: “With the death and its cause discovered on September 4, 1980, due diligence is not present when an initial inquiry about who employed the tort-feasors is made 35 months later and then instituting the administrative tort claim two years after the inquiry.” The facts indicate that plaintiffs failed to exercise due diligence. Indeed, there is nothing in the record to suggest that prior to August 1983 plaintiffs’ counsel made any effort to investigate the legally significant facts which plaintiffs contend would have been undiscoverable even if due diligence had been exercised. This argument, it seems, impliedly concedes that plaintiffs failed to exercise due diligence in investigating the elements of their claim. Plaintiffs have failed to meet their burden and duty of exercising due diligence. The government is under no obligation to notify every prospective plaintiff of its identity and involvement through its employees in all potential legal actions. Van Lieu v. United States, 542 F.Supp. 862, 866 (N.D.N.Y.1982). The burden is on the plaintiff to discover the employment status of the tort-feasor and to bring suit within the applicable limitations period. See Des-si, 489 F.Supp. at 725 (“It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.”); Zelez-nik, 770 F.2d at 23 (once a party learns of his injury he is put on notice of a potential claim and “the burden is upon him to determine within the limitations period whether any party may be liable to him”). It will not suffice for plaintiffs to assert baldly that “even due diligence would not have discovered the fact that the physicians” were federal employees. The burden is on plaintiffs to show that due diligence was exercised and that critical information, reasonable investigation notwithstanding, was undiscoverable. No evidence was offered to support the assertion that “critical facts” were undiscoverable. Indeed, the government’s prompt response to plaintiffs’ request for information contradicts this contention. No impediment, other than plaintiffs’ inaction, shielded the physicians’ legal identity. In summary, there is neither allegation nor evidence that the government delayed, misled or otherwise obstructed plaintiffs in determining the attending physicians’ employment status. Plaintiffs’ construction of the limitations statute would obviate the necessity of due diligence, even when the injury and its cause are known and a minimum inquiry would have led plaintiffs to discover in a timely manner the employment status of the treating physicians. This approach would remove incentives for the timely investigation and prompt presentation of claims and would enable a plaintiff to maintain a FTCA action against the government years after plaintiff’s injury and its cause are well known if, for any reason, it escaped the plaintiff’s attention — even absent reasonable investigation — that the alleged tort-feasor was a government agent acting within the scope of his employment. An open-ended rule would vitiate the very purpose of the statute of limitations. The plaintiffs further contend that their claim should not be barred by the statute of limitations because they were “blamelessly ignorant” of the federal government’s involvement, and such involvement could not have been presumed, implied or discovered, even after the exercise of due diligence. The Eighth Circuit, in Wollman v. Gross, 637 F.2d 544, 548-49 (8th Cir. 1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981), rejected the suggestion that the doctrine of “blameless ignorance” extends the date of “accrual” until the moment when the plaintiff becomes aware of the defendant’s status as a federal employee. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims. This may require a plaintiff to obtain legal counsel promptly and together with counsel discover the critical facts and all of their possible legal ramifications so as to enable the plaintiff to bring suit within a reasonable time. Id. at 549. As stated by the Supreme Court in Kubrick: A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. See id. at 128, 100 S.Ct. at 362 (Stevens, J., dissenting) (“A plaintiff who remains ignorant through lack of diligence cannot be characterized as ‘blameless.’ ”); Sexton, 832 F.2d at 633. When the facts of a case become so grave as to alert a reasonable person that there may have been negligence in a patient’s treatment, the statute of limitations begins to run against the claimant’s cause of action. See West, 592 F.2d at 492-93, quoting Hulver v. United States, 562 F.2d 1132, 1134 (8th Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978). In the case at bar the plaintiffs were immediately aware of the failure to properly diagnose and treat and knew that Drs. O’Rourke and Nathanson were the decedent’s attending physicians. With this information of the physicians’ errors followed by the patient's death, a reasonable person would have been alerted at the time of the death that such death may have been the result of medical negligence. We are not unmindful that a strict adherence to the requirements of the statute of limitations provision under the FTCA often works a substantial hardship on plaintiffs and may have a harsh impact on a party innocent of any impropriety. Statutes of limitations often make it impossible to enforce what are otherwise valid claims. Although we recognize the hardship resulting to the plaintiffs in this case, we have no choice but to apply the law as written. To accept plaintiffs’ arguments would be rewriting the FTCA to allow broad, open-ended exceptions to §§ 2675(a) and 2401(b). Flickinger, 523 F.Supp. at 1376-77. “Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit.” Mann v. United States, 399 F.2d 672, 673 (9th Cir.1968). See also Wollman, 637 F.2d at 549. As the Supreme Court has instructed, it is clearly the prerogative of Congress, not the judiciary, to reform the terms and scope of waiver of sovereign immunity beyond that which Congress intended. Kubrick, 444 U.S. at 117-19, 100 S.Ct. at 356-358. “It goes without saying,” as the Kubrick Court observed, “that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims.” Kubrick, 444 U.S. at 125, 100 S.Ct. at 361. Yet, they serve important, well-established purposes affirmed throughout our jurisprudence. We are bound to give them effect until such time as the creator of such provisions, the legislative branch, exercises its prerogative to amend the statute. AFFIRMED. . In his August 8, 1983, letter, plaintiffs’ attorney invited the Department to respond to his request by contacting him or his staff by telephone. The notes from office telephone conversations, identified in the record as defendants’ exhibit 11, show that HHS personnel attempted to contact the attorney by telephone as early as August 18, 1983. HHS personnel spoke with the attorney's secretary, but the attorney was apparently on vacation and unavailable until September. . The suggestion is made by plaintiffs that the term "cause” means both the cause of the injury from a medical point of view and the legal identity of the alleged tort-feasors. Such a reading of the word "cause,” in this context, is not to be found in our legal precedents. Quoting Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984), the Third Circuit rejected this broad interpretation of “cause”: "Discovery of the cause of one’s injury, however, does not mean knowing who is responsible for it. The 'cause’ is known when the immediate physical cause of the injury is discovered.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985). . As in the case at bar, the plaintiff was unaware that the defendant driver was a federal employee, neither was there evidence apparent to others involved in the accident to put them on notice that the defendant was a federal employee acting within the scope of his employment. . The plaintiff in Wilkinson arguably presented a more appealing case than the one before us today in that the case was initiated in a state court prior to expiration of the FTCA statute of limitations. Once the plaintiff was aware of the legal significance of the defendant driver’s status as a federal employee, plaintiff sought to remove the suit to federal court. Nevertheless, we barred the federal action because it was filed in federal court shortly after the FTCA statute had run. Plaintiffs in the case at bar, however, apparently made no attempt to investigate or file their claim until two years and eleven months after plaintiffs knew of the injury and its cause. Plaintiffs did not file an administrative claim with the HHS until nearly five years after Mr. Gould’s death and nearly two years after receiving confirmation of the attending physicians’ work status. It was six and a half years after the injury before suit was initiated in federal court. Such delays by the plaintiffs surely put defendants at a disadvantage in defending the suit against them. . We, of course, have no occasion to address the law where the injury is fully revealed but the tortfeasor is unknown and not readily identifiable. . Several courts have held in automobile accident cases involving federal employees that the strict two-year statute of limitations should not bar claims in federal courts when a state court action or an administrative claim was initiated before the two-year period expired, thereby giving the government notice of such a claim within the limitations period. See e.g., McGowan v. Williams, 623 F.2d 1239 (7th Cir.1980); Cham-bly v. Lindy, 601 F.Supp. 959 (N.D.Ind.1985); Harris v. Burris Chemical, 490 F.Supp. 968 (N.D. Ga.1980). Such exceptions are not universally recognized in the federal courts. Moreover, an exception of this nature would not apply in this case since the plaintiffs did not initiate their first action until more than two years after the death of Mr. Gould. . In oral argument, plaintiffs’ counsel excused plaintiffs’ failure to exercise due diligence prior to August 1983 by suggesting that Mrs. Gould was reluctant to relive this tragic episode through litigation, and it was not until the Spring or Summer of 1983 that Mrs. Gould felt sufficiently fortified to press forward with her claim. While one is sympathetic to her plight, this is not a legally recognized justification for sleeping on one’s claim. As the court acknowledged in Sexton v. United States, 832 F.2d 629, 636 (D.C.Cir.1987): [A]ny statute of limitations that puts inquiry burdens on a plaintiff, as this one clearly does, see Kubrick, 444 U.S. at 123 & n. 10, 100 S.Ct. at 360 n. 10, entails a degree of ghoulish behavior. Patients or survivors, whose instinct may well be to shut off from their minds the grim experience through which they have passed, are required instead to follow up on their leads. For persons of any sensitivity this must be a difficult or even repugnant process. Yet, to protect defendants from stale claims, legislatures put potential plaintiffs to the hard choice of proceeding with such inquiries or risking loss of possible claims. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
sc_petitioner	010	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. MARTIN et al. v. WILKS et al. No. 87-1614. Argued January 18, 1989 Decided June 12, 1989 Rehnquist, C. J., delivered the opinion of the Court, in which White, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 769. James P. Alexander argued the cause for petitioners in Nos. 87-1639 and 87-1668. With him on the briefs for petitioners in No. 87-1668 were Robert K. Spotswood, Richard H. Walston, Michael R. Pennington, and James K. Baker. Frank M. Young III and James C. Huckaby, Jr., filed a brief for petitioners in No. 87-1639. Robert D. Joffe argued the cause for petitioners in No. 87-1614. With him on the briefs were Thomas D. Barr, Robert F. Mullen, Paul C. Saunders, Alden L. Atkins, William L. Robinson, Richard T. Seymour, Stephen L. Spitz, and Susan W. Reeves. Raymond P. Fitzpatrick, Jr., argued the cause for respondents Wilks et al. With him on the brief was Courtney H. Mason, Jr. Deputy Solicitor General Merrill argued the cause for the United States. On the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, Michael R. Lazerwitz, and Dennis J. Dimsey. Together with No. 87-1639, Personnel Board of Jefferson County, Alabama, et al. v. Wilks et al., and No. 87-1668, Arrington et al. v. Wilks et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by James M. Shannon, Attorney General of Massachusetts, Alice Daniel, Deputy Attorney General, and Jane S. Schacter and Peter Sacks, Assistant Attorneys General, Don Siegelman, Attorney General of Alabama, John Steven Clark, Attorney General of Arkansas, John Van de Kamp, Attorney General of California, Joseph I. Lieberman, Attorney General of Connecticut, Frederick D. Cooke, Corporation Counsel of the District of Columbia, Robert A. Buttenvorth, Attorney General of Florida, Michael J. Boivers, Attorney General of Georgia, Jim Jones, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Frederic J. Coivan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, J. Joseph Ciaran, Jr., Attorney Genral of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Mike Greely, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Cary Edwards, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Robert H. Henry, Attorney General of Oklahoma, James E. O’Neil, Attorney General of Rhode Island, T. Travis Medlock, Attorney General of South Carolina, Jim Mattox, Attorney General of Texas, Jeffrey Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia-, Godfrey R. de Castro, Attorney General of the Virgin Islands, Charlie Brown, Attorney General of West Virginia, Donald J. Hanaway, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming; for the American Civil Liberties Union et al. by Steven R. Shapiro, John A. Powell, Michael J. Wahoske, Mark B. Rotenberg, and Leslie J. Anderson; for the Equal Employment Advisory Council by Robert E. Williams and Douglas S. McDowell; and for the National League of Cities et al. by Benna Ruth Solomon, Beate Bloch, and Zachary D. Fasman. Briefs of amici curiae urging affirmance were filed for the International Association of Fire Fighters, AFL-CIO, by Thomas A. Woodley and Michael S. Wolly; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso. N. Thompson Powers, Ronald S. Cooper, Barry L. Goldstein, Julius LeVonne Chambers, and Ronald L. Ellis filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae. Chief Justice Rehnquist delivered the opinion of the Court. A group of white firefighters sued the city of Birmingham, Alabama (City), and the Jefferson County Personnel Board (Board) alleging that they were being denied promotions in favor of less qualified black firefighters. They claimed that the City and the Board were making promotion decisions on the basis of race in reliance on certain consent decrees, and that these decisions constituted impermissible racial discrimination in violation of the Constitution and federal statutes. The District Court held that the white firefighters were precluded from challenging employment decisions taken pursuant to the decrees, even though these firefighters had not been parties to the proceedings in which the decrees were entered. We think this holding contravenes the general rule that a person cannot be deprived of his legal rights in a proceeding to which he is not a party. The litigation in which the consent decrees were entered began in 1974, when the Ensley Branch of the National Association for the Advancement of Colored People and seven black individuals filed separate class-action complaints against the City and the Board. They alleged that both had engaged in racially discriminatory hiring and promotion practices in various public service jobs in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and other federal law. After a bench trial on some issues, but before judgment, the parties entered into two consent decrees, one between the black individuals and the City and the other between them and the Board. These proposed decrees set forth an extensive remedial scheme, including long-term and interim annual goals for the hiring of blacks as firefighters. The decrees also provided for goals for promotion of blacks within the fire department. The District Court entered an order provisionally approving the decrees and directing publication of notice of the upcoming fairness hearings. App. 694-696. Notice of the hearings, with a reference to the general nature of the decrees, was published in two local newspapers. At that hearing, the Birmingham Firefighters Association (BFA) appeared and filed objections as amicus curiae. After the hearing, but before final approval of the decrees, the BFA and two of its members also moved to intervene on the ground that the decrees would adversely affect their rights. The District Court denied the motions as untimely and approved the decrees. United States v. Jefferson County, 28 FEP Cases 1834 (ND Ala. 1981). Seven white firefighters, all members of the BFA, then filed a complaint against the City and the Board seeking injunctive relief against enforcement of the decrees. The seven argued that the decrees would operate to illegally discriminate against them; the District Court denied relief. App. to Pet. for Cert. 37a. Both the denial of intervention and the denial of injunctive relief were affirmed on appeal. United States v. Jefferson County, 720 F. 2d 1511 (CA11 1983). The District Court had not abused its discretion in refusing to let the BFA intervene, thought the Eleventh Circuit, in part because the firefighters could “institut[e] an independent Title VII suit, asserting specific violations of their rights.” Id., at 1518. And, for the same reason, petitioners had not adequately shown the potential for irreparable harm from the operation of the decrees necessary to obtain injunctive relief. Id., at 1520. A new group of white firefighters, the Wilks respondents, then brought suit against the City and the Board in District Court. They too alleged that, because of their race, they were being denied promotions in favor of less qualified blacks in violation of federal law. The Board and the City admitted to making race-conscious employment decisions, but argued that the decisions were unassailable because they were made pursuant to the consent decrees. A group of black individuals, the Martin petitioners, were allowed to intervene in their individual capacities to defend the decrees. The defendants moved to dismiss the reverse discrimination cases as impermissible collateral attacks on the consent decrees. The District Court denied the motions, ruling that the decrees would provide a defense to claims of discrimination for employment decisions “mandated” by the decrees, leaving the principal issue for trial whether the challenged promotions were indeed required by the decrees. App. 237-239, 250. After trial the District Court granted the motion to dismiss. App. to Pet. for Cert. 67a. The court concluded that “if in fact the City was required to [make promotions of blacks] by the consent decree, then they would not be guilty of [illegal] racial discrimination” and that the defendants had “established] that the promotions of the black indivictuals... were in fact required by the terms of the consent decree.” Id., at 28a. On appeal, the Eleventh Circuit reversed. It held that, “[bjecause... [the Wilks respondents] were neither parties nor privies to the consent decrees,... their independent claims of unlawful discrimination are not precluded.” In re Birmingham Reverse Discrimination Employment Litigation, 833 F. 2d 1492, 1498 (1987). The court explicitly rejected the doctrine of “impermissible collateral attack” espoused by other Courts of Appeals to immunize parties to a consent decree from charges of discrimination by nonparties for actions taken pursuant to the decree. Ibid. Although it recognized a “strong public policy in favor of voluntary affirmative action plans,” the panel acknowledged that this interest “must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed.” Ibid. The court remanded the case for trial of the discrimination claims, suggesting that the operative law for judging the consent decrees was that governing voluntary affirmative-action plans. Id., at 1497. We granted certiorari, 487 U. S. 1204 (1988), and now affirm the Eleventh Circuit’s judgment. All agree that “[i]t is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U. S. 32, 40 (1940). See, e. g., Parklane Hosiery Co. v. Shore, 439 U. S. 322, 327, n. 7 (1979); Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U. S. 313, 328-329 (1971); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100, 110 (1969). This rule is part of our “deep-rooted historic tradition that everyone should have his own day in court.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4449, p. 417 (1981) (hereafter 18 Wright). A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings. Petitioners argue that, because respondents failed to timely intervene in the initial proceedings, their current challenge to actions taken under the consent decree constitutes an impermissible “collateral attack.” They argue that respondents were aware that the underlying suit might affect them, and if they chose to pass up an opportunity to intervene, they should not be permitted to later litigate the issues in a new action. The position has sufficient appeal to have commanded' the approval of the great majority of the Federal Courts of Appeals, but we agree with the contrary view expressed by the Court of Appeals for the Eleventh Circuit in these cases. We begin with the words of Justice Brandéis in Chase National Bank v. Norwalk, 291 U. S. 431 (1934): “The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger.... Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.” Id. at 441. While these words were written before the adoption of the Federal Rules of Civil Procedure, we think the Rules incorporate the same principle; a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined. See Hazeltine, supra, at 110 (judgment against Hazeltine vacated because it was not named as a party or served, even though as the parent corporation of one of the parties it clearly knew of the claim against it and had made a special appearance to contest jurisdiction). Against the background of permissive intervention set forth in Chase National Bank, the drafters cast Rule 24, governing intervention, in permissive terms. See Fed. Rule Civ. Proc. 24(a) (intervention as of right) (“Upon timely application anyone shall be permitted to intervene”); Fed. Rule Civ. Proc. 24(b) (permissive intervention) (“Upon timely application anyone may be permitted to intervene”). They determined that the concern for finality and completeness of judgments would be “better [served] by mandatory joinder procedures.” 18 Wright §4452, p. 453. Accordingly, Rule 19(a) provides for mandatory joinder in circumstances where a judgment rendered in the absence of a person may “leave... persons already parties subject to a substantial risk of incurring... inconsistent obligations....” Rule 19(b) sets forth the factors to be considered by a court in deciding whether to allow an action to proceed in the absence of an interested party. Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree. The parties to a lawsuit presumably know better than anyone else the nature and scope of relief sought in the action, and at whose expense such relief might be granted. It makes sense, therefore, to place on them a burden of bringing in additional parties where such a step is indicated, rather than placing on potential additional parties a duty to intervene when they acquire knowledge of the lawsuit. The linchpin of the “impermissible collateral attack” doctrine — the attribution of preclusive effect to a failure to intervene — is therefore quite inconsistent with Rule 19 and Rule 24. Petitioners argue that our decisions in Penn-Central Merger and N & W Inclusion Cases, 389 U. S. 486 (1968), and Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 (1968), suggest an opposite result. The Penn-Central litigation took place in a special statutory framework enacted by Congress to allow reorganization of a huge railway system. Primary jurisdiction was in the Interstate Commerce Commission, with very restricted review in a statutory three-judge District Court. Review proceedings were channeled to the District Court for the Southern District of New York, and proceedings in other District Courts were stayed. The District Court upheld the decision of the Interstate Commerce Commission in both the merger and the inclusion proceedings, and the parties to that proceeding appealed to this Court. Certain Pennsylvania litigants had sued in the District Court for the Middle District of Pennsylvania to set aside the Commission’s order, and this action was stayed pending the decision in the District Court for the Southern District of New York. We held that the borough of Moosic, one of the Pennsylvania litigants, could not challenge the Commission’s approval of the merger and inclusion in the Pennsylvania District Court, pointing out the unusual nationwide character of the action and saying “[i]n these circumstances, it would be senseless to permit parties seeking to challenge the merger and the inclusion orders to bring numerous suits in many different district courts.” 389 U. S., at 505, n. 4. We do not think that this holding in Penn Central, based as it was upon the extraordinary nature of the proceedings challenging the merger of giant railroads and not even mentioning Rule 19 or Rule 24, affords a guide to the interpretation of the rules relating to joinder and intervention in ordinary civil actions in a district court. Petitioners also rely on our decision in Provident Bank, swpra, as authority for the view which they espouse. In that case we discussed Rule 19 shortly after parts of it had been substantially revised, but we expressly left open the question whether preclusive effect might be attributed to a failure to intervene. 390 U. S., at 114-115. Petitioners contend that a different result should be reached because the need to join affected parties will be burdensome and ultimately discouraging to civil rights' litigation. Potential adverse claimants may be numerous and difficult to identify; if they are not joined, the possibility for inconsistent judgments exists. Judicial resources will be needlessly consumed in relitigation of the same question. Even if we were wholly persuaded by these arguments as a matter of policy, acceptance of them would require a rewriting rather than an interpretation of the relevant Rules. But we are not persuaded that their acceptance would lead to a more satisfactory method of handling cases like these. It must be remembered that the alternatives are a duty to intervene based on knowledge, on the one hand, and some form of joinder, as the Rules presently provide, on the other. No one can seriously contend that an employer might successfully defend against a Title VII claim by one group of employees on the ground that its actions were required by an earlier decree entered in a suit brought against it by another, if the later group did not have adequate notice or knowledge of the earlier suit. The difficulties petitioners foresee in identifying those who could be adversely affected by a decree granting broad remedial relief are undoubtedly present, but they arise from the nature of the relief sought and not because of any choice between mandatory intervention and joinder. Rule 19’s provisions for joining interested parties are designed to accommodate the sort of complexities that may arise from a decree affecting numerous people in various ways. We doubt that a mandatory intervention rule would be any less awkward. As mentioned, plaintiffs who seek the aid of the courts to alter existing employment policies, or the employer who might be subject to conflicting decrees, are best able to bear the burden of designating those who would be adversely affected if plaintiffs prevail; these parties will generally have a better understanding of the scope of likely relief than employees who are not named but might be affected. Petitioners’ alternative does not eliminate the need for, or difficulty of, identifying persons who, because of their interests, should be included in a lawsuit. It merely shifts that responsibility to less able shoulders. Nor do we think that the system of joinder called for by the Rules is likely to produce more relitigation of issues than the converse rule. The breadth of a lawsuit and concomitant relief may be at least partially shaped in advance through Rule 19 to avoid needless clashes with future litigation. And even under a regime of mandatory intervention, parties who did not have adequate knowledge of the suit would relitigate issues. Additional questions about the adequacy and timeliness of knowledge would inevitably crop up. We think that the system of joinder presently contemplated by the Rules best serves the many interests involved in the run of litigated cases, including cases like the present ones. Petitioners also urge that the congressional policy favoring voluntary settlement of employment discrimination claims, referred to in cases such as Carson v. American Brands, Inc., 450 U. S. 79 (1981), also supports the “impermissible collateral attack” doctrine. But once again it is essential to note just what is meant by “voluntary settlement. ” A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly “settle,” voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement. This is true even if the second group of employees is a party to the litigation: “[P]arties who choose to resolve litigation through settlement may not dispose of the claims of a third party... without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors.” Firefighters v. Cleveland, 478 U. S. 501, 529 (1986). Insofar as the argument is bottomed on the idea that it may be easier to settle claims among a disparate group of affected persons if they are all before the court, joinder bids fair to accomplish that result, as well as a regime of mandatory intervention. For the foregoing reasons we affirm the decision of the Court of Appeals for the Eleventh Circuit. That court remanded the case for trial of the reverse discrimination claims. Birmingham Reverse Discrimination, 833 F. 2d, at 1500-1502. Petitioners point to language in the District Court’s findings of fact and conclusions of law which suggests that respondents will not prevail on the merits. We agree with the view of the Court of Appeals, however, that the proceedings in the District Court may have been affected by the mistaken view that respondents’ claims on the merits were barred to the extent they were inconsistent with the consent decree. Affirmed. Judge Anderson, dissenting, “agreefd] with the opinion for the court that these plaintiffs [the Wilks respondents] were not parties to the prior litigation which resulted in the consent decree, and that the instant plaintiffs are not bound by the consent decree and should be free on remand to challenge the consent decree prospectively and test its validity against the recent Supreme Court precedent.” In re Birmingham Reverse Discrimination Employment Litigation, 833 F. 2d, at 1503. He distinguished, however, between claims for prospective relief and claims for backpay, the latter being barred, in his opinion, by the City’s good-faith reliance on the decrees. Id., at 1502. We have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party. See Hansberry v. Lee, 311 U. S. 32, 41-42 (1940) (“class” or “representative” suits); Fed. Rule Civ. Proc. 23 (same); Montana v. United States, 440 U. S. 147, 154-155 (1979) (control of litigation on behalf of one of the parties in the litigation). Additionally, where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate, legal proceedings may terminate preexisting rights if the scheme is otherwise consistent with due process. See NLRB v 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_respond1_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 first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. 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: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). John T. DIRRING, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. No. 6760. United States Court of Appeals First Circuit. Jan. 10, 1967. Richard E. Floor, Boston, by appointment of the Court, for appellant. Albert F. Cullen, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. Petitioner Dirring and one Gleason were tried twice on a two count indictment for planning and executing the robbery of a national bank in Avon, Massachusetts. The first trial ended in a “hung jury” — the second in verdicts of guilty. Following sentence, Dirring appealed. We affirmed the conviction. Dirring v. United States, 328 F.2d 512 (1st Cir. 1964), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (Dirring I). From time to time since his conviction, petitioner has sought various post-conviction remedies, among them four motions for new trial. These motions were denied — the last two without a hearing. From the denial of the last one, petitioner appealed pro se to this court. We affirmed the order of the district court. Dirring v. United States, 353 F.2d 519 (1st Cir. 1965), (Dirring II). A few months later he was back in the district court — again pro se — this time with the instant motion to vacate sentence under 28 U.S.C. § 2255. Submitted with it were several lengthy affidavits in support of the numerous grounds alleged. The district court denied this motion without a hearing and for the third time in as many years petitioner appeals to us seeking redress of his alleged grievances. This appeal was taken pro se but later, at petitioner’s request, we assigned counsel. The basic issue on appeal is whether the district court erred in denying the petitioner a hearing on the issues raised by his § 2255 motion. All but two of the grounds for relief set forth in this motion have already , been fully reviewed by this court in Dirring I and II and were found to be without merit. On a motion to vacate sentence (or judgment) we will not re-review grounds for relief previously considered and determined. As to these grounds, petitioner is not entitled to another review. D’Ercole v. United States, 361 F.2d 211, 212 (2d Cir. 1966); Frye v. United States, 337 F.2d 385, 386 (7th Cir. 1964), cert. denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). Although the strict doctrine of res adjudicata does not apply to § 2255 motions, it is firmly settled that issues disposed of on a prior appeal will not be reviewed again by way of such a motion. Grene v. United States, 360 F.2d 585, 586 (5th Cir. 1966); Medrano v. United States, 315 F.2d 361, 362 (9th Cir.), cert. denied, 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed. 2d 81 (1963). Indeed, an appeal from the denial of a § 2255 motion which attempts to raise again questions which had been previously determined may be dismissed as frivolous. Lipscomb v. United States, 312 F.2d 891, 892 (8th Cir.), cert. denied, 374 U.S. 810, 83 S.Ct. 1702, 10 L.Ed.2d 1034 (1963). The only new grounds for relief alleged in the instant motion are (1) that the trial judge prematurely and erroneously discharged the alternate juror before the second trial was concluded, and (2) that petitioner in being forced to trial a second time was subjected to double jeopardy in violation of his Fifth Amendment rights. As to the first, it appears that on the final day of the second trial, when it was evident the trial was about to conclude, the court stated that since all the regular jurors were present the alternate juror would no longer be needed and thereupon excused him. Thereafter two witnesses were called and examined briefly; followed by arguments of counsel and the court’s charge. The case was then given to the jury and verdicts of guilty were returned — all on the same day. Petitioner contends that under 24 (c) of the Fed.R.Crim.P. the alternate juror should not have been discharged until after the jury had retired to consider its verdict; that in excusing him prior to that time an illegally constituted jury resulted and by reason thereof all subsequent proceedings were in violation of his rights under the due process clause. We see no merit whatever in this contention. Under Rule 24(c) the selection of alternate jurors is entirely discretionary with the court. Neither party is entitled to alternate jurors as a matter of right. The gist of petitioner’s double jeopardy argument is that the government, having put him to a trial .that ended in a hung jury and in which he alleges the government wrongfully suppressed certain evidence — which evidence could have tilted the divided jury in his favor — it thereby deprived him of his chance of acquittal. Hence he claims that the second trial for the same offense violated the Double Jeopardy Clause. From this he argues that the district court erred in denying his § 2255 motion without a hearing on the question of whether such evidence was in fact wrongfully suppressed at the first trial. In Dirring II petitioner made this same contention on substantially the same evidence under the guise of prosecutorial misconduct. There he related it solely to the second trial. In that case we specifically found there was no valid factual basis for this contention and dismissed it as being without merit. Thus we are faced with but another aspect of the same factual situation which has twice been fully reviewed by this court. Petitioner attempts to bolster this latest contention with new affidavits. We have carefully examined these affidavits and find that the factual situation is still not adequately presented. Although we have previously advised petitioner of the inappropriateness of hearsay affidavits, see Dirring II, supra; cf. United States v. Pisciotta, 199 F.2d 603 (2d Cir. 1952), he still persists in resorting to them. In support of his claim of prosecutorial misconduct he submits two affidavits, one by his former co-defendant Gleason and the other by a fellow inmate, stating they had been told by two government witnesses in the first trial that government counsel had coerced them not to change their grand jury identification of petitioner — which they had wished to do. These affidavits are pure hearsay. We can well understand that petitioner does not enjoy his incarceration. However, a § 2255 proceeding is a collateral remedy available to a petitioner only when some basic fundamental right is denied, and not as a routine review at the behest of a defendant who is dissatisfied with his sentence. Although we conceive it to be our duty to guard zealously the rights of defendants in criminal cases, we think the time has come to admonish the petitioner in this case that he can no longer expect to presume upon the time and patience of this court with successive groundless appeals. The motion and the files and records of this case conclusively show that this petitioner is entitled to no relief and in our opinion the district court was correct in dismissing his § 2255 motion without a hearing. Affirmed. . Dirring received concurrent sentences of five and twenty years which he is now serving. . The bank was robbed by two masked men. The principal question then before us was whether there was sufficient evidence for the jury to find that Dirring was one of them. We held that there was sufficient evidence. . He also appealed from the denial of motions for assignment of counsel and for compulsory process to witnesses which were filed with this motion and were denied without hearing at the same time. . He calls it a motion to vacate judgment. By whatever name, we regard it as a § 2255 motion to vacate sentence. . At the same time the court also denied several related motions without a hearing but granted petitioner leave to file and proceed in forma pauperis. . At the time petitioner moved in this court for assignment of counsel he had already submitted his brief pro se. The attorney we assigned to represent him filed a supplemental brief and based his oral argument on both briefs. . Section 2255 provides that “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall * * * grant a prompt hearing # * * » . This includes petitioner’s complaint that he was wrongfully denied counsel on his fourth motion for a new trial. This point was adequately covered in Dirring II and we see no need to re-examine it. . Petitioner argues that the prosecutor deliberately failed to disclose at the first trial that two prosecution witnesses who had identified him from a police “mug shot” at the hearing before the grand jury wanted to repudiate this identification. There were two other allegations of suppression of evidence by the prosecutor relating to petitioner’s alibi but he did not brief or argue one and waived the other for the purpose of this appeal. Therefore we do not consider them. . See footnote 9. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_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. 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 ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America v. Norman Dennis SMITH, Appellant. No. 74-2000. United States Court of Appeals, District of Columbia Circuit. Submitted without argument June 9, 1975. Decided Dec. 22, 1975. Noel H. Thompson, Washington, D. C. (appointed by this Court), for appellant. Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson, Eugene M. Propper, Charles E. Wagner and Robert E. Hauberg, Jr., Asst. U. S. Attys., were on the brief for appellee. Before LEVENTHAL and WILKEY, Circuit Judges, and MERHIGE, United States District Judge for the Eastern District of Virginia. Sitting by designation pursuant to 28 U.S.C. § 292(d). PER CURIAM: Defendant Smith was convicted of three counts of unlawful distribution of heroin in violation of 21 U.S.C. § 841(a) (1970), and sentenced to 1 — 3 years on each count, the sentences to run concurrently. The convictions arose out of three sales made at 10:15 p. m. on April 16, 1974; at 10:30 p. m. on the following night, April 17th; and at 10:10 p. m. on April 22d. Defendant claims that the trial judge erred in failing to grant him a continuance to comply with the alibi notice rule, Rule 2-5(b) of the Criminal Rules of the United States District Court for the District of Columbia, and in refusing to allow the defendant to present alibi witnesses because of his failure to comply with the rule. On July 16, 1974, the prosecutor served a demand for notice under Rule 2-5(b) upon Smith. No response was received prior to August 13th. At a status hearing on that day, defense counsel told the court that defendant proposed to present an alibi for the evening of April 16th, but that counsel had not been able to supply the necessary names and addresses to the prosecution. In fact, at that time defense counsel had only one name, which had been supplied by defendant for the first time the morning of the hearing. (Pretrial Hrg. Tr. 2). The trial court, noting that the ten days specified in the rule and in the demand sent to defendant had long since expired, ruled that defendant’s alibi witnesses would not be allowed to testify in his behalf. A one week’s continuance was granted, at defense counsel’s request, to allow him to prepare other aspects of his case. At trial defendant was not allowed to put on alibi witnesses, although he was allowed to testify on his own behalf that he was in Baltimore with his wife’s family on the night of April 16th, and an alibi instruction was given to the jury. Under Rule 2 — 5(b) as then in effect, the trial judge must exclude alibi testimony (other than that by the defendant himself) if the notice rule is not complied with, unless there is “good cause shown.” The only reason offered here for the lack of compliance was defendant’s failure to provide his counsel with the requisite names. The defendant had been informed by his counsel of the Government’s notice “and I have got to have those names.” The proposed witnesses were members of defendant’s wife’s family who lived only an hour away, and no explanation is given for defendant’s delay. However, defendant claims that, even where failure to comply with the rule may be attributable to a defendant’s negligence, the sanction of refusing to grant a continuance or to allow a late tender of the information is excessive, and in violation of defendant’s right, guaranteed by the Fifth and Sixth Amendments to the Constitution, to present a defense. Defendant did not present to the trial court his contention that the sanction was excessive to the point of being unconstitutional, or any suggestion of a lesser sanction for enforcement of the objective of the rule. In Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), the Supreme Court upheld a similar state rule against an attack under the Fourteenth Amendment, rejecting inter alia the contention that the rule violates the due process right to a fair trial. In Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), the court held that such due process validity depends on provision of reciprocal discovery rights for the defendant against the government — a feature contained in the district court rule before us. Subsequent to the trial and appellate argument in the case at bar the Supreme Court held that a court may consistently with the Sixth Amendment, enforce a preclusion sanction against a defendant who insists on offering testimony of a witness while resisting disclosure of his prior (and possibly inconsistent) statements and reports. United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975). Exclusion of testimony by an alibi witness for lack of advance notice was upheld in Rider v. Crouse, 357 F.2d 317, 318 (10th Cir. 1966). There is as yet no Supreme Court precedent on that point, and we know of no precedent at all as to a late pretrial tender. The evolution of sound rules and doctrines to govern the question of alibi witnesses is a matter that has occupied the courts and legislatures. As of December 1, 1975, Rule 12.1(d) of the Rules of Federal Criminal Procedure, as proposed by the Supreme Court and approved by Congress, gives the trial judge discretion to admit alibi testimony notwithstanding the failure to give timely notice to the prosecution. Experience under the rule will likely give rise to helpful guidelines, as to when alibi witnesses may be excluded, how evidentiary questions arising from the exclusion should be handled, and whether there should be any comment on the absence of the alibi witnesses. This case is governed by an earlier rule that also provided some flexibility, for though it speaks in one sentence in mandatory language, in the next it admits exceptions for good cause shown. But the new rule would go further, for it would apparently permit the trial judge to admit alibi testimony even where there was no excuse for delay if convinced that this was necessary to avoid injustice. Our judicial function must be exercised in the light of the record as a whole. The later proffered alibi witnesses are family friends. Defendant did not give their names to his counsel when timely asked. They related to only the first of three occasions in April 1974 covered by the undercover officer who testified he had thrice bought narcotics of defendant. This is not a case of mistaken identity. The undercover officer identified defendant in a pretrial lineup (Tr. 17). Defendant admitted being at the pertinent location on the other two nights — his explanation being that he was there as a user, not a seller, of heroin (Tr. 81-82). While conceivably, a convincing alibi for April 16th might have cast doubt on the testimony of the undercover officer, who identified defendant as the person who sold him drugs on all three nights, this is offset not only by the strong evidence on identification but by the officer’s testimony, on cross-examination, that he gave a description of the narcotics seller after the first buy (Tr. 78). Defense counsel abstained from any followup questions as to the nature of that identification — a course that many would regard as reflecting commendable prudence. The jury deliberated only 33 minutes. The trial judge entered concurrent sentences. Even clearly presented constitutional claims are subject to rules of harmless error. In view of the solid identification evidence, it seems most unlikely that the alibi testimony of relatives would have raised a doubt in the minds of the jury. While no single point is logically conclusive, the case as a whole leaves us with the conviction that there is no substantial prejudice, and that substantial justice will not be denied by our ruling that the judgment is Affirmed. . Rule 2-5(b), as in effect at the time of trial, provided that, upon demand by the prosecutor, a defendant must produce, within ten days, a notice of his intention to offer an alibi defense. ^ The Notice must specify the place at which defendant claims to have been and the names and addresses of witnesses upon whom he intends to rely. The prosecution must reciprocate by providing the defense with the names and addresses of the witnesses upon whom it intends to rely in establishing the defendant’s presence at the scene of the crime or in rebutting defendant’s alibi. If either party fails to provide this information within the specified time periods, the court is required, unless good cause is shown, to exclude the testimony of that party’s alibi witnesses. . Later, at trial, counsel asserted that he had had three names ready to give the prosecution at the earlier hearing (Tr. 86). . The proposed Federal Rule of Criminal Procedure 12.1, slated to become effective December 1, 1975 (Pub.L.No.94-64, (July 31, 1975)) makes exclusion of alibi witnesses for noncompliance discretionary. However, appellant fails to point out, and the record on appeal does not reveal, any circumstances which would make the exclusion here an abuse of discretion. . “I explained to my client that the Government served a notice requesting alibi witnesses on us, and I told my client to give me their names and addresses.” (Pre-trial Hrg. Tr. 2). “That is correct, your Honor. And I have advised my client I have got to have those names.” (Pre-trial Hrg. Tr. 3). “[M]y client did not get the names of those people to me in time for me to stay within the ten-day rule . . . ” (Tr. 85). . (d) Failure To Comply. — Upon the failure of either party to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at, the scene of the alleged offense. This rule shall not limit the right of the defendant to testify in his own behalf. The rule as finally formulated is identical (except for its section number), to the original version submitted by the Supreme Court to Congress. Compare, Communication From the Chief Justice of the United States, Proposed Amendments to the Federal Rules of Criminal Procedure, H.R.Doc.No.292, 93d Cong., 2d Sess. 42-43 (1974), with Pub.L.No. 94^64, § 3 (July 31, 1975). The House Bill submitted to the Committee on the Judiciary would have made exclusion of alibi witnesses mandatory upon non-compliance with the disclosure requirements. H.R. 6799, 94th Cong., 1st Sess. (May 7, 1975). However, in the Bill reported out by the Judiciary Committee, rule 12.1(d) was returned to its original discretion^ ary form. H.R.Rep.No.247, 94th Cong., 1st Sess. (May 29, 1975), U.S.Code Cong. & Admin.News 1975, p. 1358 (Pamphlet No. 7). . In the case at bar, the prosecutor was allowed to comment on their absence in argument (Tr. 97), but the court refused to give a missing witness instructions upon which the jury might have drawn an inference from their absence. Previously, after prosecutor asked defendant the names of the people he stayed with on April 16 (Mary Simmons and Jane Simmons) he followed-up, without objection “Now, did you see them in court today?” “A. No, sir.” (Tr. 84). Question: What is the total number of appellants in the case? 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. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EASTERN MASSACHUSETTS STREET RAILWAY COMPANY, Respondent (two cases). Nos. 5030, 5089. United States Court of Appeals First Circuit. July 31, 1956. Fannie M. Boyls, Washington, D. C., Attorney, with whom Theophil C. Kamm-holz, General Counsel, David P. Findling, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Maurice Alexandre, Attorney, Washington, D. C., on brief, for petitioner. J. Joseph Maloney, Jr., Boston, Mass., for respondent. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. WOODBURY, Circuit Judge. Both of these petitions for enforcement of orders of the National Labor Relations Board rest basically upon the propriety of a finding made by the Board under § 9 (b) of the Labor Management Relations Act, 1947, 61 Stat. 143, 29 U.S.C.A. § 159(b) that only a company-wide unit of the Respondent’s operating and maintenance employees was appropriate for the purpose of collective bargaining between the Respondent and those employees. The petitions also present questions of compliance with § 9(f) of the Act by one of the labor organizations involved, questions with respect to alleged discriminatory discharges of several employees, questions of union domination and support, questions of refusal to bargain, and a question of procedure. The Respondent in previous incarnations owned and operated an electric street and inter-urban railway system regularly serving the eastern Massachusetts area and a few communities in Rhode Island. It now and for many years past has served the same area with motor buses. The gasoline it uses is purchased locally but is transported to Massachusetts from points outside the Commonwealth, it leases tires shipped to it from Ohio, and it purchases buses manufactured outside Massachusetts. The population of the area it serves is over 1,500,-000 and its gross annual revenues for the years involved was far in excess of $6,-000. 000. The facts essential to the Board’s basic jurisdiction in the premises are clearly established. Indeed, the Respondent does not contend that its activities do not subject it to the jurisdiction of the Board. The Respondent maintains its central office in Boston where it employs about 25 persons including its principal officers. Following the pattern established by its predecessors the Respondent is divided into 11 operating divisions, each centered in a major city in the area and each under the supervision of a manager who has wide discretion and authority in the operation and control of his division. Although the Respondent operates some lines connecting two divisions, most of its business is not done between divisions but within divisions. The employees in each division are organized into locals of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL. They have been similarly organized for many years and ever since 1906 the Respondent and its predecessor companies have had agreements with the separate locals. Since 1910 the local unions have been represented in bargaining with the Respondent by a committee called at first the Joint Conference Board and in later years the General Conference Committee (GCC hereinafter) consisting of the presidents of the 11 locals and sometimes a representative of the maintenance employees. The Board, or Committee, has always negotiated single agreements covering all employees in the system but it has never been a party to a collective bargain agreement. Amalgamated was a party to the agreements until 1947, but since then the only contracting parties have been the Respondent and' the eleven local unions. Late in 1951 the GCC requested changes in the contract for the ensuing year and the parties began negotiations with respect to those changes. Many bargaining sessions were held, but in spite of efforts on both sides the parties reached an impasse over requests by GCC for changes in the existing pension plan. In this, situation of stalemate, Amalgamated polled its membership throughout the Respondent’s system and the employees, voted almost unanimously to strike. The strike began on March 10, 1952, but nevertheless the Respondent and the GCC continued to bargain for the next three-months. On June 21, 1952, Amalgamated’s local in the Respondent’s Lowell Division, No. 280, voted to abandon the strike and on the following day all but 19 of its members returned to work. Two days later the GCC notified the Lowell Local, as we shall refer to it hereinafter, that it would ask Amalgamated to revoke that local’s charter and on the next day the GCC did so. The Lowell Local’s executive board thereupon voted to enter into a contract of its own with the Respondent and on June 25 its representatives met with officers of the Respondent and advised them of the Lowell Local’s desire for a separate contract. The Respondent immediately drafted a contract with the Lowell Local containing the same provisions as its 1950 contract with all the locals, except for a wage increase of $.15 an hour. That contract was signed before the meeting broke up. Two days later, on June 27, the Respondent wrote letters to the 19 members of the Lowell Local who had not returned to work with the others informing them that they were “suspended indefinitely,” a euphemism for “fired” frequently employed by the Respondent in its dealings with its employees. On July 8 a majority of the employees in all eleven divisions voted to end the strike provided the Respondent reinstated the 19 “suspended” Lowell strikers, and after some hesitation the Respondent, contending that reinstatement of those men was a matter to be settled only with the Lowell Local, agreed on July 18 to do so. On July 15 the strike ended and all the strikers returned to work. In the meantime on June 30 Amalgamated suspended the Lowell employees who had voted to abandon the strike on June 21 and returned- to work on June 22 and put its vice-president O’Brien in charge of the Lowell Local as trustee. On July 2 O’Brien advised the Respondent of Amalgamated’s action putting him in charge of the Lowell Local but it is not altogether clear that the notice he gave was sufficient to inform the Respondent of his and Amalgamated's position, that, from then on O’Brien officially represented the Lowell employees in place of one Casserly, the; duly elected president of the Lowell- Local. At any rate, negotiations during the rest of the summer and early fall between the GCC and the Respondent came to nothing for the reason that the GCC insisted upon bargaining for the Respondent’s employees in all its divisions whereas the Respondent asserted that its contracts were with the separate locals, that it already had a contract with the Lowell Local, and that it' would not recognize the GCC as the bargaining representative for its Lowell employees. On October 23 Amalgamated expelled Casserly, the suspended president of the Lowell Local, and thereafter on November 1 most of the members of the Lowell Local severed their connection with Amalgamated and retaining Casserly and their other old officers organized an unaffiliated union of their own which they called Transit Workers Local No. 1. This union took over and continued the Lowell Local’s contract of June 25 with the Respondent, and the Respondent recognized it as the bargaining representative of its Lowell employees. Meanwhile the Lowell Local continued as an entity under the trusteeship of Amalgamated’s vice-president O’Brien and an assistant, an employee named MacLean, whom some 15 or 16 of the 19 Lowell employees who continued on strike after their fellows had returned to work had appointed to-represent them in subsequent dealings with the Respondent. On the facts just summarized the Board, one member dissenting, found in the decision upon which it based the order which it asks us to enforce in its first petition, No. 5030, that .in view of the integrated nature of the Respondent’s operations and its long practice of bargaining with a single agent (the GCC) representing the operating and maintenance employees in all its 11 divisions, a bargaining unit consisting of its Lowell employees alone was inappropriate, that the appropriate unit was company-wide, and that the bargaining representative of a majority of the employees in that unit was Amalgamated’s 11 locals acting jointly through the GCC. From this the Board said that it followed,, as/ alleged in the complaint, “that when the Company dealt with the Lowell Local as representing a mere fraction of this appropriate unit, at the very time when the Association [meaning in context Amalgamated’s 11 locals acting together through the GCC] had the right, and in fact was insisting upon exercising it, to represent all the Company’s employees, its conduct constituted a refusal to bargain with the majority representative in the appropriate unit and therefore a violation of Section 8(a) (5) of the statute.” Then the Board went on to say: “Similarly, the recognition which it accorded the Lowell Local as bargaining agent in the inappropriate grouping of a minority of the employees, at a time when it was under obligation to bargain with the duly designated majority representative in the appropriate unit, was unlawful assistance to the Lowell Local and therefore a violation of Section 8(a) (2).” The Board’s finding that the Respondent unlawfully dealt with and thereby unlawfully contributed support to the Lowell Local and later to Transit Workers Local No. 1 in violation of § 8(a) (2) of the Act follows as a logical corollary from the Board’s basic finding that the Respondent violated § 8(a) (5) of the Act by refusing to bargain collectively with the company-wide employee unit it found to be appropriate for that purpose. We do not understand the Respondent seriously to argue to the contrary. But before we consider the propriety of the Board’s unit determination on which its finding of refusal to bargain rests, we must consider the question of GCC’s compliance with § 9(f), for that is a jurisdictional requirement. The proceedings of the Board under § 10 of the Act as a result of which the Board issued the order it asks us to enforce in its first petition, No. 5030, rest basically upon five unfair labor practice charges, one filed by the GCC, one filed by the 11 locals, and three filed by individual employees. Complaints issued on these charges and the complaints were eventually consolidated for hearing. In the view we take of the case no useful purpose would be served by analysing the charges, complaints, answers and consolidation orders in detail. It will suffice to say that the charge filed by GCC and the complaint issued thereon alleged that the Respondent, among other unfair labor practices, refused to bargain with the GCC as the exclusive representative of the appropriate employee unit consisting of the operating and maintenance employees in all its 11 divisions, and that the Respondent in its answer to the complaint alleged in addition to denying the asserted unfair labor practices “that if said General Conference Committee is a labor organization within the meaning of § 2(5) of the Act, it has not complied with the requirements imposed on labor organizations by §§ 9(f), 9(g) and 9(h) of the Act, and no complaint should have been issued pursuant to charges purportedly filed by it.” Counsel for the Respondent at the hearing before the trial examiner undertook to prove his allegation of non-compliance by the GCC by questions directed first to a former officer and later to a present member of the GCC. Counsel for the General Counsel objected in both instances and his objections were sustained by the trial examiner who ruled that GCC’s compliance with § 9(f), (g) and (h) was a matter for administrative determination which was not litigable in either compliance or representation proceedings. The trial examiner added: “We must presume that the General Counsel, as an able and conscientious servant of the government, has made an administrative determination that the General Conference Committee is in compliance with § 9(f), (g), and (h) of the Act.” Respondent’s counsel then made an offer to prove GC C’s non-compliance. His offer was rejected, and he listed an objection to that ruling in the exceptions to the trial examiner’s report which he filed with thé Board. The Board did not consider this objection specifically but affirmed the trial examiner’s ruling thereon in a general statement affirming all his rulings. Certainly counsel for the Respondent preserved his client’s right to have its contention considered by this court. See § 10(e) of the Act. And in N. L. R. B. v. Puerto Rico Food Products Corp., 1956, 232 F.2d 515, this court held that when properly challenged in enforcement proceedings the Board must come forward with evidence to show compliance by the labor organization or organizations involved with the filing requirements of § 9(f), (g) and (h) of the Act and give the Respondent a chance to refute that evidence if it could. This court felt then, as it does now, that there was an analogy between an administrative determination of compliance and allegations of diverse citizenship in a complaint under the diversity-jurisdiction. That is to say, we were of the opinion that an administrative determination of compliance could properly be given face value, in the same way that face value is given to allegations of diverse citizenship in a diversity action. But when the administrative determination of compliance is properly challenged, then, as in the case of a challenge to the -allegation of diversity of citizenship, the Board, as the party asserting jurisdiction, like the plaintiff in a diversity action, must come up with evidence to support the allegations on which it rests the jurisdiction it seeks to invoke. Thus we concluded that it.was incumbent on the Board when challenged to produce evidence of the filing of the reports and affidavits which § 9(f), (g) and (h) require -to be on file before the, organization can invoke the enumerated procedures and remedies of the Board. We rested our conclusion in the Puerto Rico Food Products Corp. case upon inferences, admittedly not altogether clear, drawn from the language used by the Supreme Court in N. L. R. B. v. Coca-Cola Bottling Co. of Louisville, Inc., 1956, 350 U.S. 264, 76 S.Ct. 383, and upon the ground that at least as to § 9(h) the fact of compliance was so closely interwoven with the necessity for compliance that to prevent an employer from litigating the former might operate to deprive him of the power to exercise his right under N. L. R. B. v. Highland Park Mfg. Co., 1951, 341 U.S. 322, 71 S.Ct. 758, 95 L.Ed. 969, and the Coca-Cola Bottling Co. case, supra, to litigate the latter. If we were right in the Puerto Rico Food Products Corp. case, then it follows that the trial examiner was wrong in rejecting the Respondent’s offer of proof and the Board was wrong in affirming the trial examiner’s ruling. But it now appears that counsel for the Respondent under his general offer of proof was not proposing to show that the reports required by § 9(f) and (g) had not been filed on behalf of the GCC or that its officers had not filed the non-communist affidavits required by § 9(h). His proposal instead was to show that some of the reports filed by the GC C were false. He says in his brief that “Respondent was prepared to prove that much of the material filed by the GCC pursuant to Sections 9(f) (A) (2) and (6), and 9(f) (B) (1) and (2), on which material the General Counsel based his administrative determination of compliance, was false to such an extent as to amount to a nullity in terms of complying with the Act and known to be so false by the officers of the GCC when it was filed.” This is quite another matter as we pointed Out in our opinion in the Puerto Rico Food Products Corp. case. The reason for this is that the statutory sanction for failing to file the documents and affidavits required by § 9(f), (g) and (h) is denial of access by the labor organization involved to the enumerated Board procedures and remedies, whereas the sanction for filing false documents and affidavits is the heavy criminal penalty imposed by Title 18 U.S.C.jj 1001 quoted in the margin. This sanction as to false non-communist affidavits is specifically imposed by the last sentence of § 9(h) which makes § 35A of the Criminal Code, now in pertinent part § 1001, supra, applicable to them. There is no reason whatever to suppose that Congress by specifically imposing a criminal sanction in § 9(h) by inference intended not to impose the criminal sanction which otherwise would be applicable in the event false reports were filed under § 9(f) and (g). And we assume from the clear imposition of a criminal sanction for filing false reports and affidavits that no other was intended. At least we are not inclined to infer the imposition of any sanction other than the criminal one in the absence of any indication to that effect in the Act. Our conclusion, therefore, is that when challenged in a proceeding such as this the Board is called upon to support its assertion of jurisdiction by coming forward with evidence of what reports have been filed on behalf of the charging labor organization under § 9(f) and (g) and which officers of that labor organization have filed non-communist affidavits under § 9(h), and afford the challenging Respondent an opportunity to refute that evidence if it can. But we hold that a Respondent in proceedings of this sort cannot introduce evidence of the falsity of any of the reports or affidavits on file. We express no opinion on the problem that would arise in the event the Board should undertake to process a charge by a labor organization after a determination, either administrative or in a criminal prosecution, that one or more of its reports filed under § 9(f) and (g) or of the affidavits filed under § 9(h) was in fact false. See Farmer v. United Electrical, Radio & Machine Workers, 1953, 93 U.S.App.D.C. 178, 211 F.2d 36, certiorari denied, 1954, 347 U.S. 943, 74 S.Ct. 638, 98 L.Ed. 1091; Farmer v. International Fur & Leather Workers Union, 1955, 95 U.S.App.D.C. 308, 221 F.2d 862; and N. L. R. B. v. Lannom Mfg. Co., 6 Cir., 1955, 226 F.2d 194, certiorari granted sub nom. Amalgamated Meat Cutters & Butchers Workmen of North America, AFL-CIO v. N. L. R. B., 1956, 351 U.S. 905, 76 S.Ct. 695. It follows that while we think the trial examiner and the Board erred in rejecting the Respondent’s broad offer of proof under which it might have shown failure by the GCC or its officers to file the documents required, the error later proved harmless in the light of the Respondent’s assertion that what it actually wanted to prove was not any failure to file but the falsity of some of the documents submitted for filing. Turning back now to the Board’s bargaining unit determination we find no abuse by the Board of the powers conferred upon it in § 9(b) of the Act. In pertinent part that section reads: “The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof”. This general language confers broad powers upon the Board. “The issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed.” Packard Motor Car Co. v. N. L. R. B., 1947, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040. And in this case we can say as the Supreme Court said in the above case, “While we do not say that a determination of a unit of representation cannot be so unreasonable and arbitrary as to exceed the Board’s power, we are clear that the decision in question does not do so. That settled, our power is at an end.” The fact that the Respondent’s operations are of the same nature in all its divisions, and its and its predecessors’ practice for nearly a half a century of dealing with its employees on a system-wide basis, are clearly sufficient to support the Board’s determination that only a company-wide unit was appropriate for the purposes of collective bargaining between the Respondent and its employees. Respondent argues further, however, that even if the Board’s company-wide unit determination is proper, no violation of § 8(a) (5) can be based thereon for at the time of the supposed violation Respondent believed in good faith that the smaller unit was appropriate. The short answer to this is that we find no basis for setting aside the finding of the trial examiner adopted by the Board that the Respondent entertained no such bona fide belief. From this determination of violation of § 8(a) (5), as we pointed out earlier in this opinion, follows the conclusion that the Respondent by recognizing and dealing separately with the Lowell Local and Transit Workers Local No. 1 gave those unions support.in violation of § 8 (a) (2) of the Act. Moreover, additional support for this latter conclusion is found in the Respondent’s dealings with the employees allegedly dis-criminatorily discharged as will presently appear. The Board found that after the strike the Respondent discriminated against several of its employees for their adherence to Amalgamated, its local unions and the GCC. The two petitions cover the cases of eight men, one an employee in the Haverhill Division and the other seven members of the Lowell Local who had not returned to work when a majority of the members of that local abandoned the strike on June 22, 1952. The Board found that the Haverhill employee and two of the Lowell employees were discharged solely for their activities on behalf of Amalgamated and GCC. It ordered these men reinstated to their former or equivalent positions with back pay and without loss of seniority. The Board found that the other five, one of whom was O’Brien’s assistant, MacLean, mentioned above, while ostensibly discharged for cause, in fact were discriminatorily discharged for their union activity. The general pattern of discrimination found by the Board in all these five cases was the same. It was to impose the penalty of “indefinite suspension” on the men for relatively minor infractions of company rules and then to require them to process their grievances, not through Amalgamated’s vice-president O’Brien as trustee in charge of the Lowell Local, but through Casserly, at first as the suspended president of that local and later as the president of Transit Workers Local No. 1, with whom they were known to be out of sympathy, if not at swords points, and unwilling to deal. The Board found that by this tactic the Respondent not only discriminated against the men illegally in violation of § 8(a) (3) by imposing a heavier penalty for their derelictions, in practical effect discharge, than would otherwise have been meted out, but also in the process gave illegal support to the Lowell Local and Transit Workers Local No. 1 in violation of § 8(a) (2) of the Act. The Board found that on the basis of the eventual punishments inflicted after pursuit of grievance procedures upon other employees for comparable offenses the maximum punishment these five men would have received for their violations of company rules, had they followed the grievance procedures insisted upon by the Respondent, would not have exceeded ten days suspension from work. It found, therefore, that had these men set the grievance procedures required by the Respondent in motion, their “indefinite suspensions” would have been reduced to ten days. Finding also that the Respondent’s requirement that grievances be processed through Casserly and his locals was discriminatory as to these men as well as an unfair labor practice in itself under § 8(a) (2), the Board concluded that only the Respondent’s discriminatory conduct kept the men’s suspensions from being reduced to the usual level of company punishments for offenses such as theirs. It therefore ordered these men reinstated on the usual terms but less ten days back pay. Little or no purpose would be served by analysing each man’s case in detail. It will be enough to say that although in one instance the case is close, we are satisfied from a study of the record that in every instance the Board’s findings of fact and inferences therefrom are supported by substantial evidence. The serious question on this phase of the case is whether the Board had authority under the Act to order reinstatement of the five men the Board found to deserve suspensions for ten days for infractions of company rules but not “indefinite suspensions,” that is to say, in effect, discharge. The Respondent contends that in ordering the five men reinstated with any pay at all the Board flouted the clear mandate of the sentence in § 10 (c) of the Act which reads: “No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.” The purpose of this provision is to make it abundantly clear that the Board is not to interfere with the exercise bjy employers of their traditional right to discharge employees for adequate cause. N. L. R. B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 45, 57 S.Ct. 615, 81 L.Ed. 893. Thus reinstatement has been denied to employees discharged for rank insubordination, wilful disobedience or disloyalty, such for instance as disparaging their employer’s services to the public at a critical time in the development of the business, N. L. R. B. v. Local Union No. 1229 International Brotherhood of Electrical Workers, 1953, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 or, no doubt, beating a plant manager, cf N. L. R. B. v. Efco Mfg., Inc., 1 Cir., 1955, 227 F.2d 675, and this even though the employee’s offense was committed in connection with a protected activity. Bu t the provision is not to be construed to provide a cloak protecting an employer when he uses his right to discharge for the purpose of intimidating or coercing his employees in the exercise of their rights under the Act. And this occurs when an employer discharges an employee for a minor offense ordinarily punished by not more than a few days suspension where the Board finds on adequate evidence that the excess punishment was really for engaging in a protected activity. That is this case, for the Board found that breaking company rules was merely a pretext, not the cause, for discharging the men. It found on evidence we consider wholly adequate that because these five men had not processed their grievances through the union the Respondent was unlawfully assisting and with which the men would not and perhaps for personal reasons could not, deal, it discriminatorily failed to reduce the punishments inflicted upon them for breaking company rules. Thus the Board concluded, we believe correctly, that the dotal punishment inflicted on the men was not fór their infractions of company rules but for their insistence upon their protected right to process their grievances through their proper collective bargaining agent, Amalgamated and its duly constituted locals acting through the GCC, and no other. The remedy afforded is certainly appropriate for the offense. Only the procedural question remains for consideration. The basic substantive questions we have so far considered are all presented by the first petition. The second petition presents nothing new of that nature. It presents only the question of the discriminatory discharges of two of the men whose cases we have already considered, because both of them were discharged under the same circumstances as the men covered in the first petition. The second petition is definitely a sequel or mere appendage of the first. When the cases of the men with whom we are concerned in the second petition came on for hearing before a trial examiner the hearing in the first case had been completed and the trial examiner had filed his intermediate report but the Board had not yet handed down its decision and order. In this situation counsel for the General Counsel asked for a continuance until the Board had decided the first case in order to avoid the necessity of retrying on the same evidence the basic issues of unit determination, union support and employer discrimination common to both which had taken weeks to try. The trial examiner granted the motion after determining that the parties would neither enter into a stipulation as to the parts of the record in'the'first case which were relevant, nor agree to include the entire record in the first case as part of the record in the case then on trial. Thus the trial examiner had to choose between relitigating matters already tried but not yet decided or continue awaiting decision. Certainly in this situation it cannot be said that he abused his discretionary powers in granting the continuance.' Decrees will be entered enfoz'cing the orders of the Board. . Such representation is in accordance with Amalgamated’s constitution which provides that contracts or agreements shall be negotiated jointly when its members are employed by the same employer but belong to different locals. . The other petition, No. 5089, presents no issue of compliance. . The Board found that the GOO was such a labor organization and that finding is not challenged by the Respondent. . See Title‘28 U.S.C. § 1733(b). . “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more Ilian five years, or both.” . The Court of Appeals for the District of Columbia Circuit in the Farmer cases held that the Board had no authority to inquire as to the truth or falsity of non-communist affidavits filed by union officers and so could not deprive a union of its compliance status under § 9(h) on the ground that its president’s non-communist affidavit was false. But the Court of Appeals for the Sixth Circuit in the Lannom Mfg. Co. case on motion dismissed a Board petition for enforcement on the ground that the charging union’s president had been convicted for filing a false non-communist affidavit covering a year preceding the year in which the union’s unfair labor practice charge was filed. These cases impale the Board on the horns of a dilemma. There will be time enough to consider the Board’s predicament when, if ever, the occasion arises. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casesourcestate	05	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. YOUNGDAHL et al. v. RAINFAIR, INC. No. 11. Argued October 15, 1957. Decided December 9, 1957. William J. Isaacson argued the cause for petitioners. With him on the brief were Sidney S. McMath, Leland F. Leatherman and Henry Woods. J. L. Shaver, Sr. argued the cause and filed a brief for respondent. Mr. Justice Burton delivered the opinion of the Court. The issues here are whether, under the circumstances of this case, a state court may enjoin strikers and union representatives from (1) “threatening, intimidating or coercing any of the officers, agents or employees of [the employer] at any place,” and also “from obstructing, or attempting to obstruct the free use of the streets adjacent to [the employer’s] place of business, and the free ingress and egress to and from [the employer’s] property,” and (2) all “picketing or patrolling” of the employer’s premises. For reasons hereafter stated, we conclude that the state court may lawfully • enjoin conduct of substantially the first category but not of the second. Most of the material facts are uncontroverted. In 1955, respondent, Rainfair, Inc., was a Wisconsin corporation with headquarters in Racine, Wisconsin. It owned and operated a plant in Wynne, Arkansas, an essentially rural community of about 4,000 inhabitants. About 100 women and seven men were there employed in the manufacture of men’s slacks which were shipped in interstate commerce. None of the employees were members of a labor union but many had signed applications to join the Amalgamated Clothing Workers of America, CIO, which is one of the petitioners. Apparently in an effort to compel the employer to recognize the union as the bargaining agent of the employees, 29 of the employees did not report for work on May 2, 1955. A picket line was established on the street in front of the plant. Strike headquarters were maintained across the street from the plant entrance. Nearly all of the strikers were women. Their number varied from eight to 37. All was not quiet, however. On one occasion nails were strewn over the company’s parking lot and, about a week later, the whole lot was “seeded” with roofing tacks. Tacks were also scattered in the driveway of the plant manager’s home and on the driveways of 12 of the nonstriking women employees. One of the pickets told the plant manager that she would “wipe the sidewalk” with him and send him back to Wisconsin because he “was nothing but trash.” The plant manager was followed by the strikers each time he left the plant; he also was harassed at night by occasional shouting at his home and by numerous anonymous telephone calls. Immediately after the strike was called, respondent, by registered mail, informed each of the strikers that, if they did not return to work within a few days, the company would assume that those not returning had quit their jobs. Only three returned. Thirteen new employees were hired. The strike ended on May 19, the pickets were withdrawn and the strikers applied for reinstatement. Respondent, however, declined to arrange for immediate reinstatement. On June 17, the strikers voted to re-establish the picket line on Monday, June 20. The purpose was to protest against respondent’s failure to recognize the union and its refusal to reinstate the employees who had applied for reinstatement in May. Shortly after midnight, on the morning of June 20, two women strikers deliberately drove a sharp instrument into two tires of a car owned by the daughter of one of the nonstriking women employees. At about 5:15 a. m. the police were summoned to the plant where they found a five-foot black snake inside the plant beneath a broken window. At about 6 a. m. picketing was resumed. Although the union posted notices warning the strikers against committing acts of violence, a union representative later was sufficiently concerned to ask the police to have someone regularly on duty at the entrance to the plant. The evidence shows that the tension was in large part caused by the enormous amount of abusive language hurled by the strikers at the company employees. The Supreme Court of Arkansas later summarized this as follows: “As the employees would go to and from work at the plant, or go to lunch, or take a recess, the strikers would congregate along the west edge of their lot and sometimes in Rowena Street and engage in loud and offensive name calling, singing or shouting directed at the workers. They would call the workers ‘scabs/ ‘dirty scabs/ ‘fat scabs/ ‘yellow scabs/ ‘crazy scabs/ ‘cotton patch scabs/ ‘pony tailed scabs/ ‘fuzzy headed scabs/ ‘fools/ ‘cotton picking fools/ and other similar names. This took place every time an employee left or entered the plant. It was done by the strikers individually, in couples or by the entire group and in a loud and boisterous manner. One witness described it as ‘just bedlam’ when more than a dozen joined in the shouting. Particular names or remarks were reserved for individual workers. One pregnant worker was greeted with, ‘Get the hot water ready/ or, ‘I am coming to make another payment on the baby, call Dr. Beaton/ or, ‘Why, you can work another hour until you go to the delivery room.’ This worker and another drove to a filling station for gasoline when two of the strikers drove up and told the attendant not to wait on ‘these scabs’ before he waited on the strikers. “One worker said the strikers always called her ‘fat scab/ and that individual pickets and strikers made fun of her clothing and asked her if ‘Pete/ the plant manager, still liked her ‘low-cut dresses and earrings.’ This made the employee so angry she invited the picket to come over and ‘make it some of her business.’. . . “The strikers sang songs with improvised lyrics to the tune of certain popular ballads and religious and Union songs. ‘When The Saints Go Marching In’ became ‘When The Scabs Go Marching In’ and the ballad, ‘Davy Crockett/ began, ‘Born in a cotton patch in Arkansas, the greenest gals we ever saw . . . .’ “The women pickets would stand in the street or sit near the plant and shout ugly names, stick out their tongues, hold their noses and make a variety of indecent gestures while pointing at the workers in the plant. Several workers testified the continuous name calling and boisterous conduct of the strikers made them afraid, angry, ill or nervous and had an adverse effect on their ability to properly do their work. Some of the workers would talk back to the strikers while others remained silent. The Chief of Police of Wynne testified there was more tension during the second picketing than the first and that he was fearful there was going to be trouble during the second picketing and so informed Union staff members. One staff member called him once when trouble seemed imminent and wanted to 'go on record’ as having requested the presence of the officer.” 226 Ark. 80, 83-84, 288 S. W. 2d 589, 591. On June 24, respondent filed a complaint in the local Chancery Court. It described the conduct of the strikers and alleged that such conduct amounted to “unlawful acts ... for the unlawful purpose of intimidating and coercing” respondent’s employees into joining the union, that respondent had no adequate remedy at law and that it was suffering irreparable damage from such conduct. The court acted upon the complaint and the testimony of the plant manager and issued a temporary injunction. After full hearing, it made the injunction permanent on September 15. The trial court’s findings included the following statement: “That the defendants, in picketing the plaintiff’s plant, have resorted to violence, coercion and intimidation, and such other unlawful conduct as was calculated to cause a breach of the peace, and that the defendants have unlawfully abused the right to peaceably picket, as granted to them by the laws of this state and the Federal Constitution, and that said defendants should be permanently enjoined from picketing the plaintiff’s plant.” The permanent decree enjoined not only the threatening and intimidation of the employees of respondent at any place, but also all picketing or patrolling of respondent’s premises by the named defendants and all other persons in sympathy or acting in concert with them. The Supreme Court of Arkansas affirmed the decree. 226 Ark. 80, 288 S. W. 2d 589. We granted certiorari largely because of the sweeping language of the decree. 352 U. S. 822. The applicable principles of law are substantially agreed upon. Respondent concedes that it is engaged in interstate commerce and that its employees are entitled to the protection of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U. S. C. § 151. Respondent does not contend that the state court had power to enjoin peaceful organized activity, recognizing that generally the National Labor Relations Board has exclusive jurisdiction of such matters. Weber v. Anheuser-Busch, Inc., 348 U. S. 468. Petitioners concede that the state court had the power to enjoin violence. Auto Workers v. Wisconsin Board, 351 U. S. 266; Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740. Respondent contends that the record here shows a pattern of violence so enmeshed in the picketing that, to restore order, it was necessary to enjoin all organized conduct. Petitioners, on the other hand, urge that there was no violence here and no threat of it and, accordingly, that there was no factual warrant for the injunction which issued. The issue here is whether or not the conduct and language of the strikers were likely to cause physical violence. Petitioners urge that all of this abusive language was protected and that they could not, therefore, be enjoined from using it. We cannot agree. Words can readily be so coupled with conduct as to provoke violence. See Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572. Petitioners contend that the words used, principally “scab” and variations thereon, are within a protected terminology. But if a sufficient number yell any word sufficiently loudly showing an intent to ridicule, insult or annoy, no matter how innocuous the dictionary definition of that word, the effect may cease to be persuasion and become intimidation and incitement to violence. Wynne is not an industrial metropolis. When, in a small community, more than 30 people get together and act as they did here, and heap abuse on their neighbors and former friends, a court is justified in finding that violence is imminent. Recognizing that the trial court was in a better position than we can be to assess the local situation, we think the evidence supports its conclusion, affirmed by the State Supreme Court, that the conduct and massed name-calling by petitioners were calculated to provoke violence and were likely to do so unless promptly restrained. Though the state court was within its discretionary power in enjoining future acts of violence, intimidation and threats of violence by the strikers and the union, yet it is equally clear that such court entered the pre-empted domain of the National Labor Relations Board insofar as it enjoined peaceful picketing by petitioners. The picketing proper, as contrasted with the activities around the headquarters, was peaceful. There was little, if any, conduct designed to exclude those who desired to return to work. Nor can we say that a pattern of violence was established which would inevitably reappear in the event picketing were later resumed. Cf. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287. What violence there was was scattered in time and much of it was unconnected with the picketing. There is nothing in the record to indicate that an injunction against such conduct would be ineffective if picketing were resumed. Accordingly, insofar as the injunction before us prohibits petitioners and others cooperating with them from threatening violence against, or provoking violence on the part of, any of the officers, agents or employees of respondent and prohibits them from obstructing or attempting to obstruct the free use of the streets adjacent to respondent’s place of business, and the free ingress and egress to and from that property, it is affirmed. On the other hand, to the extent the injunction prohibits all other picketing and patrolling of respondent’s premises and in particular prohibits peaceful picketing, it is set aside. The judgment of the Supreme Court of Arkansas is vacated and the case is remanded to it for further proceedings not inconsistent with this opinion. It is so ordered. The Chief Justice, Mr. Justice Black, and Mr. Justice Douglas, being of opinion that Congress has given the National Labor Relations Board exclusive jurisdiction of this controversy, would reverse the judgment in its entirety and remand the cause to the state court for dismissal of the injunction. In the meantime the union had filed unfair labor practice charges against respondent before the National Labor Relations Board. These were still pending at the time of the hearing of the instant case. The union also requested the Board to conduct a representation election, but this request was withdrawn before the hearing on the injunction. At an election held on October 19, a majority of the employees of respondent voted not to be represented by the union. They later were convicted of this misdemeanor. The placards were inscribed, “Rainfair Workers on Strike, Rain-fair is unfair to its employees, Amalgamated Clothing Workers of America, CIO.” “It is, therefore, considered and decreed by this court that the defendants James E. Youngdahl . . . and each of them, and their agents and employees, and each and every one of the officers and members of Amalgamated Clothing Workers of America, CIO, and all other persons in sympathy, or acting in concert with them, be, and they are hereby permanently enjoined while on, adjacent to, or near plaintiff’s premises located on Martin Drive and Rowena Street, in Wynne, Arkansas, from interfering with plaintiff’s business, its customers and employees, and from picketing or patrolling, or causing to be picketed or patrolled the plaintiff’s premises, and the sidewalks, streets, or other property adjacent to plaintiff’s premises, with placards or banners designating said place of business as unfair to organized labor, or with placards otherwise so worded as to give said place of business such designation; that the defendants, and each of them, their agents and employees, and the officers and members of the above-mentioned union, and all sympathizers, and all other persons acting in concert with them, be, and they are hereby restrained and enjoined from accosting and detaining, or causing to be accosted or to be detained on the sidewalks or streets adjacent to or on plaintiff’s premises, any person or persons seeking to enter or depart from said place of business for the purpose of dissuading them from patronizing, or working for plaintiff, or from calling attention to any alleged unfairness of plaintiff, or its place of business, to organized labor; from threatening, intimidating or coercing any of the officers, agents or employees of plaintiff at any place; from loitering and congregating around and under the tent and upon the property that is used as the union’s headquarters, located directly across Rowena Street in front of plaintiff’s premises; and from obstructing, or attempting to obstruct the free use of the streets adjacent to plaintiff’s place of business, and the free ingress and egress to and from plaintiff’s property.” In Arkansas there was then in effect a statute of long standing which expressly made it a crime for any person to “make use of any profane, violent, vulgar, abusive or insulting language toward or about any other person in his presence or hearing, which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault . . . .” Ark. Stat., 1947, 41-1412. Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_usc1	18	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 v. Moses LEWIS, Appellant. No. 71-1202. United States Court of Appeals, Third Circuit. Argued Jan. 26, 1972. Decided March 7, 1972. Albert A. Sheen, Hodge & Sheen, Christiansted, St. Croix, V. I., for appellant. Frederick G. Watts, Asst. U. S. Atty., St. Thomas, V. I., for appellee. Before SEITZ, Chief Judge, and AL-DISERT and GIBBONS, Circuit Judges. OPINION OF THE COURT ALDISERT, Circuit Judge. This appeal from a judgment of conviction of bank robbery, in violation of 18 U.S.C. § 2113(a) and § 2113(d), presents evidentiary and jurisdictional questions and challenges the legality of the in-court identifications of appellant upon which the conviction was based. On April 23, 1970, three armed men entered the Fort Mylner Branch of the Virgin Islands National Bank and, at gun point took $36,255.00. Appellant was arrested and charged with bank robbery in two counts on May 20, 1970. A photographic array was presented to one witness the next day. He could make no positive identification. The same array was shown to a second witness on June 1, 1970, and again no identification was made. On June 25, 1970, a line-up was held by court order. Counsel for appellant was present, and he participated in the selection of the ten persons displayed in the line-up. When the witnesses to the line-up made their identifications and were questioned by the government, however, counsel was excluded. A trial of appellant and two co-defendants resulted in a hung jury. Appellant was retried and the jury returned a verdict of guilty on both counts on December 5, 1970. This appeal followed. To mitigate the impact of three positive eyewitness identifications at trial, appellant forges a challenge predicated on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and United States v. Zeiler, 427 F.2d 1305, 1307 (3d Cir. 1970), in which this court held that “[t]he considerations that led the court in Wade to guarantee the right of counsel at lineups apply equally to photographic identifications conducted after the defendant is in custody.” For several reasons, however, appellant’s reliance on Zeiler is misplaced. No testimony was adduced relating to the photographic examinations. Indeed, no photographic identification was made by any witness. Appellant argues that this is of no moment, “because the Wade decision was aimed solely at nullifying any chance for suggestiveness.” But the inability of eyewitnesses to make an identification from the photographic display belies any notion of suggestiveness. Moreover, it is only when a pre-trial identification has been made that concern is generated because “[a] witness once induced by such a suggestive confrontation into making a mistaken identification, is extremely unlikely later to change his mind.” Zeiler, supra, 427 F.2d at 1306-1307. The admission of a photographic identification as substantive evidence of guilt is a sine qua non of a Wade-Zeiler claim. Thus, Zeiler may be distinguished on the very two grounds on which constitutional error was there found: photographic identification in the absence of counsel and testimony to that effect at trial. Zeiler, supra, 427 F.2d at 1307. In any event, the trial court expressly found that “on examination of the 18 photographs I find no such suggestiveness as the record in Zeiler indicates.” Similarly, the court-ordered line-up was expressly found by the district court to be devoid of any suggestiveness. Nonetheless, the court excluded any evi-dentiary reference to the line-up. Out of exceptional caution, Judge Christian ruled that despite the absence of suggestiveness and the presence of counsel both at the time of participant selection and during the line-up itself, the failure by the government to permit counsel’s presence when the viewers made their identifications rendered inadmissible all identification testimony based on the line-up. In so doing, Judge Christian noted that no objection to the line-up had been posed, and that his rejection of the preferred identification evidence came from the spirit, rather than the letter, of Wade. See Government of the Virgin Islands v. Callwood, 440 F.2d 1206, 1208 (3d Cir. 1971). So postured, the government’s proof of identification was thus made subject to the formidable standard enunciated in Wade: the Government must be given “the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” Wade, supra, 388 U.S. at 240, 87 S.Ct. at 1939. Government of the Virgin Islands v. Callwood, supra, 440 F.2d at 1209. This standard, characterized by Judge Christian as a “heavy burden,” was deemed by the trial court, after an exhaustive hearing out of the jury’s presence, to have been met by the government. The finding was based on the court’s evaluation of the potential witnesses’ credibility. Assuming, without deciding, that the government was properly put to the “clear and convincing evidence” standard in adducing its identification testimony, we must agree with Judge Christian that the in-court identifications of all three witnesses- were free from any possible taint. Thus, while we need intimate no view toward the necessity of 'excluding the line-up identification testimony, we hold that the ineourt identification testimony was properly admitted for the jury’s consideration. Appellant argues next that the admission of a bag containing $90.00, allegedly found in an area into which the robbers were alleged to have fled, created reversible error. Although the bag and the money were admitted at the outset of the trial, defense counsel objected on the ground of irrelevancy. At the close of trial, the court reversed itself and excluded the money and bag because the prosecution had failed to establish a connection relevant to the robbery. Thus, appellant contends that the display of this evidence before the jury “had a prejudicial effect” because “[t]he jury had, from the time of admittance of this evidence, some four (4) days to ponder and consider this evidence in relation to the crime and the rest of the evidence brought before the court.” No argument is presented suggesting any way in which appellant was actually prejudiced. Indeed, if the temporary presence of this evidence had any effect on the jury at all, in light of the trial court’s thorough instruction on this point, it may have been to cast the government’s case in an unnecessarily weak light: It was testified that about $90 worth of U. S. currency was found and it was displayed before you. I have stricken it from the record. It is now no longer a part of the case and you are to disregard it entirely. The same applies to a paper bag that I at one time admitted into evidence. I have now reversed that ruling and it is no longer to be considered by you. I have taken this step because there is not sufficient connection between that $90 and any money shown to have been taken from the bank. There is no connection between that paper bag and any paper bag to which it was testified the alleged bank robbers held in hand. Therefore, you are to disregard those items completely. Assuming the propriety of the ruling which struck this evidence, we find no error here. Finally, appellant contends that the Virgin Islands District Court, because it is a legislative, rather than constitutional court, lacked the power under 18 U.S.C. § 2514 to grant immunity to a witness who testified for the government. § 2514 vests such power only in “court[s] of the United States.” Section 22 of the Revised Organic Act of the Virgin Islands (48 U.S.C. § 1612) states that “[t]he District Court of the Virgin Islands shall have the jurisdiction of a district court of the United States in all causes arising under the Constitution, treaties and laws of the United States. . . .” Yet “vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a ‘District Court of the United States.’ ” Mookini v. United States, 303 U.S. 201, 205, 58 S.Ct. 543, 545, 82 L.Ed. 748 (1938). See also, Hendricks v. Alcoa Steamship Co., 206 F.Supp. 693, 696 (E.D.Pa.1962). Thus, a territorial court may be a “court of the United States” for some purposes, but not for others. Compare Talbot v. McCarrey, 218 F.2d 565, 566 (9th Cir. 1955) with International Longshoremen v. Juneau Spruce Corp., 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275 (1952). Although the district court found the authority conferred by § 2514 to be an implementary power implicit in the jurisdictional mandate of the Revised Organic Act, we find ourselves precluded from resolving this troublesome issue. We are persuaded that appellant does not have standing to challenge the grant of immunity to the witness. In Bowman v. United States, 350 F.2d 913, 915 (9th Cir. 1965), the court found that in light of the Supreme Court’s decision in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L. Ed.2d 678 (1964), the trial court had erred in overruling a claim of privilege against self-incrimination asserted by witnesses called by the government to testify against defendant. The court then held: This, however, does not entitle Bowman to a reversal. It has long been settled that the privilege against self-incrimination is personal to the witness. (Hale v. Henkel, 1906, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; McAlister v. Henkel, 1906, 201 U.S. 90, 26 S.Ct. 385, 50 L.Ed. 671; United States v. Murdock, [284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210]; United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Communist Party of United States v. Subversive Activities Control Board, 1961, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625.) Thus, the court concluded: It makes no difference, we think, that the two witnesses did attempt to assert the privilege and that the court erroneously overruled their claim of privilege. Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it. On this point the authorities are practically unanimous. (Citations omitted and emphasis supplied.) Bowman, supra, 350 F.2d at 916. The challenge to the admission of witness Parson’s testimony on the ground that the court erroneously granted him immunity is on no firmer footing than would be an objection to evidence seized in violation of Parson’s Fourth Amendment rights. See Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969): We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights may not be vicariously asserted. Simmons v. United States, 390 U.S. 377, [88 S. Ct. 967, 19 L.Ed.2d 1247] (1968); Jones v. United States, 362 U.S. 257 [80 S.Ct. 725, 4 L.Ed.2d 697] (1960); Compare Tileston v. Ullman, 318 U.S. 44, 46 [63 S.Ct. 493, 494, 87 L.Ed. 603] (1943). Constitutional considerations aside, moreover, cogent policy reasons underscore the concept of minimizing challenges to relevant testimony. As Judge Gibbons noted in In re: Grand Jury Proceedings, 450 F.2d 199, 222-223 (3d Cir. 1971) (dissenting opinion): [I]t has been recognized for at least three centuries that the public has the right to every person’s testimony. Every witness privilege is seriously in derogation of a general and fundamental duty. United States v. Bryan, 339 U.S. 323, 333, 70 S.Ct. 724, 94 L. Ed. 884 (1950); Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919). . . . Next, we must keep before us the nature of the American judicial process. It resolves cases and controversies in an adversary setting. It does not have machinery for righting all wrongs which may surface in any given case or controversy. Determination of the rights of third parties inevitably interrupts, delays and confuses the primary litigation. . . Speaking of the less drastic step of an exclusionary rule to which a party may resort, Justice Frankfurter wrote: “Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land.” Nar-done v. United States, 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939). We hold, therefore, that appellant has no standing to contest the propriety of the grant of immunity to a witness who testified against him. United States v. Le Pera, 443 F.2d 810, 812 (9th Cir. 1971); Long v. United States, 360 F.2d 829, 834 (D.C. Cir. 1966); United States ex rel. Berberian v. Cliff, 300 F.Supp. 8, 14 (E.D.Pa. 1969). Cf., Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791, 799 (1969). The judgment of conviction will be affirmed. . The photographic displays in this case took place a few days prior to this court’s decision in Zeiler. Because we perceive no Zeiler issue to be present, however, we need not reach the question of Zeiler’.s retroactivity. . Wade does not require active participation by defense counsel in the line-up proceedings, although counsel acquiesced in the selection of participants here. See United States v. Ewing. 446 F.2d 60, 61 (9th,Cir. 1971). . The court held : In this case the Government’s agents instructed the identifying witnesses that they should write on a pad given them with a pencil the numbers of the persons whom they identified, if indeed they made any positive identification. It appears that at least three of those witnesses diil. The identifying witnesses were then taken by the Government agents to another room where at that time the Government agents had revealed to them whatever, if anything, liad been written on the pads by the identifying witness or witnesses. At the lineup and in the room with the identifying witnesses counsel for the defendants were present. In the room to which the witnesses were taken, when it was for the first time disclosed what persons, if any, they had identified, not only were counsel for the defendants not present, they were expressly barred by the Government agents. This I find to be incompatible with the doctrine that a defendant placed in a line-up is entitled to the presence of counsel throughout. . This was the same procedure for which we ordered remand in Zeiler, supra, 427 F.2d at 1309, and for which we have recently articulated guidelines. United Slates v. Zeiler, 447 F.2d 993, 995 (3d Cir. 1971) (Zeiler II). Such a hearing, to implement the mandate of Wade, has received the imprimatur of other circuits as well. United States v. Breaux, 450 F.2d 948, 949 (9th Cir. 1971); United States v. Hinkle, 448 F.2d 1157, 1159 (D.C. Cir. 1971); United States v. Morris, 445 F.2d 1233, 1237 (8th Cir. 1971); Kimbrough v. Cox, 444 F.2d 8, 11 (4th Cir. 1971). See also. United States v. Patterson, 447 F.2d 424, 427 (10th Cir. 1971); United States v. Faulkner, 447 F.2d 869, 871 (9th Cir. 1971). . The court ruled : The. ruling of Wade requires that in these circumstances the Government must show by clear and convincing proof that any in-court identification will not be the tainted product of the line-up. The phrase clear and convincing proof is far more easily uttered than applied. In the circumstances of this case, this Court has nothing on which it could make such a finding, other than the testimony of the witnesses themselves, and the circumstances of all attempts to have them identify these defendants. The witnesses Quetel, Wells, and Bancroft, all three of whom have testified that they can at this time make in-court identifications, all three of whom made accurate in-court identifications at a previous trial of this case, have stated that their recognition of these defendants will be as it was in the past trial, based solely on their recall of the events that took place in the bank on the 23rd of April 1970. They have, testified to this in a manner that satisfies the Court that they are credible witnesses. There is nothing at all in their testimony or in the circumstances of this case to suggest to this Oourt that an in-court identification by any of these three witnesses would be tainted by any prior act of any Government agent. Accordingly, these witnesses will be permitted to make an in-court identification of these defendants, if they are able to do so. . At trial, when asked to indicate which of the defendants he had just identified, witness Bancroft responded, “He is the man I identified at the lineup and he is the man that was in the bank.” Appellant urges that this is express evidence of the inability of the witness to establish an independent origin for his identification. But at the hearing prior to Bancroft’s testimony before the jury, the following colloquy took place: Q. Mr. Bancroft, can you identify one of the bank robbers at this time? I’m not asking you to identify him. A. Yes, I could. Q. Tell His Honor what the basis for your identification of that bank robber is. A. Well, my basis for identifying the person would be his features, his size, his weight, his age, color of his skin. Q. And your observation of him as of when ? A. The day of the robbery. Thus, at the hearing at which the court determined the presence rel non of an independent origin for the identification, there was no doubt that Bancroft’s testimony sprang from his observations at the scene of the robbery. That he noted in his testimony that his identification was the same as that which he made at the time of the lineup in no way detracts from its reliability. Any prior identifications notwithstanding, it is clear from the record that Bancroft’s recognition of appellant stemmed from the time of the robbery. See Government of the Virgin Islands v. Callwood, supra, 440 F.2d at 1209-1210. . Mookini thus held the Criminal Appeals Rules inapplicable to territorial courts. The Federal Rules of Criminal Procedure expressly apply to the District Court of the Virgin Islands, Rule 54(a), F.R.Cr.P. See also, Government of the Virgin Islands v. Solis, 334 F.2d 517, 519-520 (3d Cir. 1964); 3 Wright, Federal Practice and Procedure § 872. . Though the Mookini definition of district courts, which excluded territorial courts, has now been largely supplanted by a broader statutory definition, 28 U.S. O. § 451, the Virgin Islands District Court remains without the statute : “The term ‘court of the United States’ includes . . . any court created by Act of Congress the judges of which are entitled to hold office during good behavior.” (Emphasis supplied.) Judges of the Virgin Islands District Court serve eight-year terms. 48 U.S.C. § 1614(a). Thus, although we have held the Jencks Act, Government of the Virgin Islands v. Lowell, 378 F.2d 799, 805 (3d Cir. 1967), and the Bail Reform Act, Government of the Virgin Islands v. Ortiz, 427 F.2d 1043, 1046 (3d Cir. 1970), applicable to prosecutions in the Virgin Islands, while denying applicability of the constitutional right to a grand jury indictment before trial on a capital or infamous crime, Rivera v. Government of the Virgin Islands, 375 F. 2d 988, 990 (3d Cir. 1967), statutory powers granted to “court[s] of the United States” are not automatically applicable to the Virgin Islands. See also, Ottley v. DeJongh, 149 F.Supp. 75, 77 (D.V.I. 1957). . The Court in Alderman continued: There is no necessity to exclude evidence against one defendant in order to protect the rights of another. No rights of the victim of an illegal search are at stake when evidence is offered against some other party. The victim can and very probably will object for himself when, as and if it becomes important for him to do so. Alderman, supra, 394 U.S. at 174, 89 S.Ct. at 967. 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 James E. WHEELER, Nora L. Wheeler, and Sharon Carmichael, Plaintiffs-Appellees, v. COMMISSIONER OF HIGHWAYS, COMMONWEALTH OF KENTUCKY, Defendant-Appellant. No. 86-5423. United States Court of Appeals, Sixth Circuit. Argued March 27, 1987. Decided June 22, 1987. Rehearing Denied Aug. 4, 1987. William H. Wallace (argued), Louisville, Ky., for defendant-appellant. Theodore H. Amshoff, Jr. (argued), Louisville, Ky., Richard L. Masters, for plaintiffs-appellees. James E. Wheeler, pro se. Lewis G. Benham, Louisville, Ky., for J. Wheeler. Bert. T. Combs, Sheryl G. Snyder, William H. Hollander, Wyatt, Tarrant and Combs, Louisville, Ky., for amicus curiae, Outdoor Advertising Assc., of Kentucky, Inc. John F. Daly (argued), John F. Cordes, U.S. Dept, of Justice, Appellate Staff, Civil Div., Washington, D.C., for amicus curiae, the U.S. Before KENNEDY, RYAN and NORRIS, Circuit Judges. CORNELIA G. KENNEDY, Circuit Judge. Appellees challenged, the constitutionality, on first and fourteenth amendment grounds, of the Kentucky Billboard Act, Ky.Rev.Stat.Ann. §§ 177.830-177.890 (Baldwin 1985) (“Billboard Act”), and the Kentucky regulations implementing this statute. 603 Ky.Admin.Regs. 3:010 (1975). The District Court held that the Billboard Act and regulations were unconstitutional on their face because they discriminated against non-commercial speech in favor of commercial speech. The Kentucky Commissioner of Highways (“Commissioner”) appeals arguing that the statute and regulations are content neutral and narrowly tailored to serve substantial state interests. We agree and reverse. The Billboard Act prohibits the erection or maintenance of any “advertising device” on private property within 660 feet of the right of way of any interstate highway or federal-aid primary highway. Ky.Rev.Stat. Ann. § 177.841(f). Violations of the Billboard Act are declared to be a public nuisance authorizing an employee or officer of the Kentucky Bureau of Highways to remove the device without notice. Id. § 177.-870. The express purpose of the Billboard Act is to provide for maximum visibility along affected highways, to prevent unreasonable distraction of operators of motor vehicles, to prevent interference with the effectiveness of traffic lights, signs or signals, to preserve and enhance the natural and scenic beauty or aesthetic features of the affected highways, and to promote the safety and comfort of the users of such highways. Id. § 177.850. Section 177.860 contains an exception to the general prohibition. It provides that devices erected or maintained on the property for the purpose of indicating the name and address of the owner, lessee, or occupant of the property, the name or type of business or profession conducted on such property, information required or authorized by law to be displayed on the property, devices advertising the sale or lease of the property on which it is placed, devices complying with applicable commercial or industrial zoning ordinances, and devices providing directional information for businesses offering goods and services of interest to the traveling public, do not violate section 177.841. In addition to containing the general prohibitions found in the Billboard Act, the regulations promulgated by the Kentucky Department of Transportation spell out the permissible limits for on-premises signs in protected areas. On-premises signs are permitted and include signs defined in section 177.860 and signs “that contain a message relating to an activity or the sale of a product on the property on which they are located.” 603 Ky.Admin.Regs. 3:010, § 2(3) (1975). The regulations also regulate the size and spacing of on-premises signs. “Billboards,” defined as “devices that contain a message relating to an activity or product that is foreign to the site on which the device and message is located,” id. § 2(2), are prohibited in all protected areas, except for areas zoned commercial or industrial prior to September 21, 1959. There, “billboards” or off-premises signs are allowed subject to size and spacing restrictions. Id. § 5. The Billboard Act and regulations were adopted in response to the federal Highway Beautification Act of 1965. 23 U.S.C. §§ 131-136 (1982) (“Act”). This Act provides for the regulation and control of outdoor advertising devices adjacent to interstate and federal-aid primary highways. Its purpose is “to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty.” Id. § 131(a). The Act requires each state participating in the highway beautification program to exercise “effective control” over outdoor advertising. It prohibits advertising devices located within 660 feet of the interstate or federal-aid primary highway, or if located outside urban areas, such devices are prohibited beyond 660 feet if visible from the highway. “Effective control” means that signs, displays, or devices within the prescribed area shall be limited to directional and official signs, signs advertising the sale or lease of property on which they are located, signs advertising activities conducted on the property on which they are located, signs of historic or artistic significance, and signs advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the interstate or primary system. Id. § 131(c). The penalty for not complying with the Act is the forfeiture of ten percent of the state’s federal highway funds until such time as the state provides for effective control. Id. § 131(b). The Commissioner refused to grant appellees a permit to display a political or religious message on a billboard located one foot from the right of way fence in Bullitt County, Kentucky, adjacent to Interstate Highway 65. The area was not zoned industrial or commercial prior to September 21, 1959, and the proposed sign would not qualify as an on-premise sign. It does not appear that any activity was conducted on the portion of the property where the sign was to be placed. Consequently, appellees sought an injunction against the enforcement of the Billboard Act based on allegations of its discriminatory and ad hoc enforcement. In an amended complaint, appellees added federal officials as defendants and challenged the constitutionality of the Billboard Act and regulations, and the federal regulations implementing the Act. Appellees also sought damages arising from the violation of their constitutional rights. By stipulation, the case was assigned to a magistrate for trial. The magistrate dismissed the case as to the federal defendants and declined to award damages, concluding that such an award would violate the eleventh amendment. However, the magistrate entered summary judgment for, appellees against the Commissioner. The Commissioner appealed. We concluded that the factual stipulations were unclear; the magistrate had failed to make an adequate recital of the uncontested facts on which he relied or make clear the legal basis for his decision. We remanded the action for clarification of the holding. After remand, the magistrate held the Billboard Act and regulations unconstitutional on their face because they prohibit signs with ideological messages in areas where “on-premises” commercial or other activities could be advertised. This appeal followed. The Commissioner contends that the Billboard Act and regulations are a valid time, place, and manner restriction on appellees’ first amendment rights because they are not aimed at the messages that appellees seek to display but at the “secondary effects” of advertising devices including their detrimental effects on highway scenic beauty. The Commissioner argues that the Supreme Court’s decision in Metromedia, Inc. v. City of San Diego, 458 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), does not apply because the restrictions are content neutral: they do not distinguish between commercial and noncommercial messages, as was the case with the ordinance in Metromedia, because the restrictions apply to all messages irrespective of content. Furthermore, the Commissioner argues that the restrictions are narrowly tailored to serve substantial state interests — aesthetics and highway safety — and that the restrictions leave ample alternative areas for communication through the use of billboards, i.e., areas zoned commercial or industrial along interstate and federal aid primary highways as well as areas adjacent to other streets and highways. Appellees, on the other hand, contend that the restrictions violate the first amendment because they define what is permissible based on the content of the message: signs advertising a business or activity located on the property are permitted while a sign of the same size advertising a business or activity off-site is prohibited. Although appellees recognize that the regulations permit noncommercial messages relating to an activity on-site, they contend that the inherent limitations on an activity preclude many ideological, political, and religious ideas. Thus, appellees argue that the Billboard Act and regulations are invalid under Metromedia. Furthermore, appellees contend that even if the restrictions are content neutral, no adequate alternative means of communication are reasonably available. I. The Supreme Court has recognized that the first amendment does not guarantee the right to communicate one’s views at all times and places or in any manner. Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). Expression, whether oral or written, is subject to reasonable time, place, and manner restrictions. Clark v. Community For Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). Such restrictions are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a substantial governmental interest, and they leave open ample alternative channels for communication of the information. Id. Accord Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118, 2130, 80 L.Ed.2d 772 (1984); Heffron, 452 U.S. at 647-48, 101 S.Ct. at 2563-64. II. We believe that the statute and regulations in the present case are valid place and manner restrictions. The statute and regulations subject on-premises signs adjacent to interstate highways to size and spacing restrictions. The statute and regulations also prohibit all off-premises signs containing any message in protected areas adjacent to interstate highways. The regulations permit off-premises signs in urban areas if the sign is more than 660 feet from the interstate highway. Additionally, they permit off-premises signs in areas adjacent to the interstate or federal aid primary highways which were zoned commercial or industrial prior to September 21, 1959. These permissible off-premises signs are also subject to size and spacing restrictions. It is apparent from the express purpose and effect of the Billboard Act that the restrictions on the location of off-premises signs regulate the secondary effects, not the content of these signs. The Supreme Court has recently considered the validity of a restriction designed to regulate the secondary effects of protected speech. In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Court considered a challenge to a zoning ordinance that prohibited adult theaters from locating within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. The Court noted that the ordinance treated theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, the Court noted that the ordinance was not aimed at the content of the films shown, but rather at the secondary effects of such theaters on the nearby community. Id. 106 S.Ct. at 929. Accordingly, the Court found that the ordinance was consistent with its definition of “content-neutral” speech because it was justified without reference to the content of the speech, and stated: The ordinance does not contravene the fundamental principle that underlies our concern about “content-based” speech regulations: that “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.” Id. at 929 (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972)). In Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), the Court considered a rule promulgated by a public corporation that required all persons desiring to sell, exhibit, or distribute materials during the state fair to do so only from fixed locations. The Court concluded that the restriction was content neutral and a reasonable restriction on place and manner because it applied evenhandedly to all persons or organizations, whether commercial or charitable, who wish to distribute and sell written materials or to solicit funds. Id. at 655, 101 S.Ct. at 2567. We believe that the Billboard Act and regulations are content neutral. They are not directed at the content of the messages, but at their secondary effects. The restrictions permit commercial and noncommercial signs in protected areas as long as the signs relate to an activity on the premises. Messages such as “Abortion is Murder,” or “No Nukes” are permissible if an activity related to the message is conducted on the premises. Like the restrictions in Heffron, the Billboard Act and regulations apply evenhandedly to commercial and non-commercial speech; they discriminate against no viewpoint or subject matter. Furthermore, commercial and noncommercial messages are treated alike in urban areas and areas zoned commercial or industrial prior to September 21, 1959. The Washington Supreme Court reached a similar conclusion with respect to a statute much like the statute and regulations in the present case. In State v. Lotze, 92 Wash.2d 52, 593 P.2d 811, appeal dis missed, 444 U.S. 921, 100 S.Ct. 257, 62 L.Ed.2d 177 (1979), the state sought an order for removal of billboards from defendant’s property. The applicable statute prohibited signs visible from an interstate, primary, or scenic highway. Excepted from this general prohibition were directional or other official signs required or authorized by law, signs advertising the sale or lease of property on which they were located, and signs advertising activities conducted on the property on which they were located. Such signs were permissible within view of a scenic highway subject to size, location, and number restrictions. The statute also permitted signs adjacent to highways in commercial or industrial areas subject to size and spacing restrictions. The court, recognizing that a total ban of on-premises signs may violate the first amendment, concluded that the statutory scheme was content neutral and constituted a valid place and manner limitation on speech. 92 Wash.2d at 59, 593 P.2d at 815. Furthermore, the on-premises/off-premises distinction does not constitute an impermissible regulation of content just because the determination of whether a sign is permitted at a given location is a function of the sign’s message. Kentucky, by allowing persons who own or lease property, to have a sign, subject to size and space restrictions, advertising an activity conducted on the property is not favoring one message over another. The state has simply recognized that the right to advertise an activity conducted on-site is inherent in the ownership or lease of the property. In Linmark Assocs., Inc. v. Township of Willingboro, 431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155 (1977), the Court considered an ordinance that prohibited the posting of “For Sale” signs or “Sold” signs because the township sought to abate the flight of white homeowners from a racially integrated community. The ordinance did not prohibit other types of signs. The Court found the ordinance unconstitutional because the township enacted the ordinance to prevent its residents from obtaining certain information. Id. at 96, 97 S.Ct. at 1620. The Court emphasized that because the township did not prohibit all lawn signs, “the... ordinance is not genuinely concerned with the place of the speech— front lawns.” Id. at 93, 97 S.Ct. at 1618. Additionally, the Court noted that the “township has not prohibited all lawn signs — or all lawn signs of a particular size or shape — in order to promote aesthetic values.” Id. Unlike the ordinance in Linmark, the Billboard Act and regulations are concerned with the place of the signs and the promotion of aesthetic values. The Kentucky legislature enacted the statute in part “[t]o preserve and enhance the natural scenic beauty or the aesthetic features of... interstate highways.” Ky.Rev.Stat. Ann. § 177.850(4).® Kentucky has prohibited all off-premises signs in non-urban areas and areas not zoned industrial or commercial prior to September 21, 1959. The exception for on-premises signs recognizes the important function of these signs and was not enacted to prevent the citizens of Kentucky from receiving certain information. See State v. Hopf 323 N.W.2d 746 (Minn.1982) (on-premise sign is part of business itself and state, by prohibiting off-premises signs within 100 feet of a church or school, did not favor one message over another). Appellees in the present case rely on the Supreme Court’s decision in Metromedia Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). There, the Court considered the constitutionality of a San Diego ordinance that banned all outdoor advertising devices, unless authorized by one of the specified exceptions. These exceptions included signs identifying the premises on which the sign was located or signs advertising goods produced or services rendered on the premises. The exceptions also included religious symbols, commemorative plaques of recognized historical societies, signs carrying news items or telling the time or temperature, signs erected in the discharge of any governmental function, or temporary political campaign signs. A majority of the Court recognized that the city had legitimate interests in controlling the non-communicative aspects of billboards, but found the ordinance unconstitutional on its face. Writing for the plurality, Justice White found the ordinance constitutional insofar as it restricted commercial advertising to on-site advertising, but stated: There is a broad exception for onsite commercial advertisements, but there is no similar exception for noncommercial speech. The use of onsite billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited____ Insofar as the city tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages. Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895. With respect to the limited exceptions for certain non-commercial advertisements, the plurality stated that the ordinance favored certain categories of noncommercial speech over others. According to the plurality, “[w]ith respect to non-commercial speech, the city may not choose the appropriate subjects for public discourse.” Id. at 515, 101 S.Ct. at 2896. Thus, the plurality concluded that the city had regulated impermissibly the content of non-commercial speech. Id. at 515, 101 S.Ct. at 2896. Justice Brennan, with whom Justice Blackman joined, concurred in the judgment. Justice Brennan believed that the ordinance constituted a total ban of billboards, and the city had failed to justify this total restriction. The city failed to show, for example, that banning billboards actually furthered traffic safety and that billboards presented more substantial aesthetic problems than other permitted uses. Id. at 528-30, 101 S.Ct. at 2903-04. Although not deciding whether the exceptions to the total ban constituted an independent basis for invalidating the ordinance, Justice Brennan disagreed with the plurality’s characterization of the exceptions in the ordinance for non-commercial speech. He concluded that the ordinance would permit non-commercial advertisements if the owner or occupant is an enterprise usually associated with non-commercial speech. Id. at 536, 101 S.Ct. at 2907. Unlike the restriction at issue in Metromedia, the on-premises exception in the present case is not limited to commercial speech: the on-site exception can be applied to any topic, commercial or non-commercial. Additionally, unlike the ordinance in Metromedia, the exceptions in the Kentucky statute and regulations for non-commercial speech are not limited to political advertisements, commemorative plaques, or religious symbols. The restrictions permit any non-commercial signs as long as they relate to an activity on the premises. The magistrate failed to recognize that messages such as “Abortion is Murder” or “No Nukes” are permissible as long as an activity related to the message is conducted on the property. Appellees in the present case also rely on several cases construing similar state statutes or local ordinances in support of their proposition that the Billboard Act and regulations are unconstitutional. In John Donnelly & Sons v. Campbell, 639 F.2d 6 (1st Cir.1980), aff'd, 453 U.S. 916, 101 S.Ct. 3151, 69 L.Ed.2d 999 (1981), plaintiffs challenged the constitutionality of the Maine Traveler Information Services Act. Me. Rev.Stat.Ann. tit. 23, §§ 1901-1925 (1980 & Supp.1986). The statute prohibited the erection or maintenance of signs, subject to certain exceptions. These exceptions included signs of a governmental body, signs identifying stops or fare zones of motor buses, signs showing the place and time of church and civic organization meetings, signs announcing fairs and exhibitions within the county, signs announcing nonprofit historical and cultural institutions, temporary political signs, and signs located on common carriers and inspected motor vehicles. Plaintiffs argued, inter alia, that some of the exceptions to the general prohibition depend on the message conveyed; consequently, the statute was directed toward the content of the messages on the signs. Nevertheless, the court concluded that the statute, generally, was content neutral and prohibited billboards not because of their messages, “but because the medium itself is objectionable.” 639 F.2d at 8. The court found the statute unconstitutional, however, because of its effect on non-commercial speech. The court noted that the statute permitted some types of on-premises signs relating to non-commercial activities but concluded that these exceptions did not go far enough. Id. at 15. The court construed the on-premise exception as not permitting messages such as “Abortion is Murder” or “Save the Whales,” and found that the statute impacted more heavily on ideological than on commercial speech. In Matthews v. Town of Needham, 764 F.2d 58 (1st Cir.1985), residents of Need-ham challenged the validity of a bylaw barring the posting of almost all off-premises signs. Certain types of signs were exempt from this general prohibition but the exception did not permit political signs, even though “For Sale” signs, professional office signs, and signs erected for religious or charitable causes were permitted. The court held the bylaw unconstitutional because it was concerned with the content, not the time, place, or manner of the speech. Id. at 60. Similarly, in Metromedia, Inc. v. Mayor & City Council, 538 F.Supp. 1183 (D.Md.1982), plaintiff challenged a city ordinance that contained restrictions on the kind and size of on-premises advertising signs permitted in a certain area of the city and prohibited in all off-premises signs in this area. The court, relying on the Supreme Court’s decision in Metromedia, found the statute unconstitutional because the ordinance did not treat commercial and non-commercial speech equally. Id. at 1187. According to the court, the ordinance permitted an owner or occupier of land within the affected area to affix a sign identifying the premises, but prohibited signs displaying messages other than identification of the premises. See also State v. Miller, 83 N.J. 402, 416 A.2d 821 (1980) (ordinance invalid where it prohibited signs relating to political speech while allowing “For Sale” signs and signs identifying churches, schools, parks, and signs erected by federal, state or local government); Norton Outdoor Advertising, Inc. v. Village of Arlington Heights, 69 Ohio St.2d 539, 433 N.E.2d 198 (1982) (ordinance restricting billboard advertising to product sold or business conducted on premises held unconstitutional because it excluded all non-commercial messages). In the present case, the Billboard Act and regulations permit on-premises signs relating to an activity conducted on the site on which the sign is located. Messages such as “Abortion is Murder,” “Save the Whales,” or “George Wallace For President” are permitted in non-urban areas and areas not zoned industrial or commercial before September 21, 1959 as long as an activity relating to the message is being conducted on the premises. Non-commercial and commercial speech are treated alike. The restrictions do not limit noncommercial signs to signs advertising churches and civic organizations or commercial activities as in John Donnelly & Sons, Matthews, and Mayor & City Council. III. The next question this Court must consider is whether the Billboard Act and regulations are narrowly tailored to serve substantial governmental interests. As discussed above, the Billboard Act was enacted to provide for maximum visibility and safety along affected highways, and to preserve and enhance the scenic beauty or aesthetic features of such highways. Ky. Rev.Stat.Ann. § 177.850. The U.S. Supreme Court has in several instances concluded that such interests are substantial and justify a content neutral restriction on expression. All of the Justices in Metromedia recognized the importance of the safety and aesthetic considerations that gave rise to the San Diego ordinance. Furthermore, seven Justices would have found those interests sufficient to justify a content neutral ban on off-premises commercial signs. 453 U.S. at 508-511,101 S.Ct. at 2893-2894 (opinion of White, J., joined by Stewart, Marshall, Powell, JJ.); id. at 552, 101 S.Ct. at 2915 (Stevens, J., dissenting in part); id. at 559-61, 101 S.Ct. at 2919-20 (Burger, C.J., dissenting); id. at 570, 101 S.Ct. at 2924 (Rehnquist, J., dissenting). A majority of the Court in Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), reaffirmed this conclusion and found that these interests justified an ordinance that prohibited the attachment of all signs to utility poles. The Court concluded that the city’s interests in advancing aesthetic values, minimizing traffic hazards, and preventing interference with the intended use of public property were substantial. According to the Taxpayers for Vincent Court: “The problem addressed by this ordinance — the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property— constitutes a significant substantive evil within the City’s power to prohibit.” Id. at 807, 104 S.Ct. at 2130. More recently, in City of Renton, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Court concluded that the city’s interest in attempting to preserve the quality of urban life was sufficient to justify an ordinance that prohibited adult motion picture theaters from locating within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Id. 106 S.Ct. at 930. Rejecting the argument that the city must rely on studies specifically relating to the city’s problems, the Court stated that “so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses,” id. at 931, such interests are sufficient to support the restriction. See also John Donnelly & Sons, 639 F.2d 6 (1st Cir.1980) (court took judicial notice that statute prohibiting erection and maintenance of most off-premises signs advanced substantial state interest in aesthetics and tourism); E.B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir.) (court found ordinance prohibiting all off-premises signs within 200 feet of expressway and regulating their size and spacing within 660 feet of expressway supported by county’s substantial interest in promoting highway safety and aesthetics), cert. dismissed, 400 U.S. 805, 91 S.Ct. 12, 27 L.Ed.2d 12 (1970)). Although the record in the present case contains little evidence regarding Kentucky’s interests in traffic safety, we conclude that the interest in promoting the recreational value of public travel and preserving natural beauty along interstate highways is substantial and sufficient to support the content neutral restrictions. Accord John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 339 N.E.2d 709 (1979) (bylaw enacted solely for aesthetic reasons supported content neutral ban on most off-premises signs); Cf. John Donnelly & Sons, 639 F.2d at 12-13. Kentucky’s restrictions are also narrowly tailored to achieve this interest. The Supreme Court has held that a content neutral time, place, and manner restriction must be upheld unless it “is substantially broader than necessary to protect the [state’s] interest.” Taxpayers for Vincent, 466 U.S. at 808, 104 S.Ct. at 2130. There, the Court rejected the argument that the city’s interest in aesthetics could not support a ban on signs on utility poles because the city did not ban signs wherever they might be located. The Court emphasized that a partial content neutral ban may nonetheless enhance the city’s appearance. Id. at 811, 104 S.Ct. at 2132. Appellees do not contend that the restrictions could be more narrowly tailored to serve Kentucky’s interest in preserving the natural beauty of its interstate highways. Moreover, the exception for on-site messages and off-site messages in areas zoned commercial or industrial prior to 1959 does not invalidate Kentucky’s substantial interest in aesthetics. The addition of a sign on an existing building or in an area zoned industrial or commercial is only incremental damage to the environment; a sign erected on a site with no buildings creates a new insult to the countryside. “Even if some visual blight remains, a partial, content-neutral ban may nevertheless enhance the [state’s] appearance.” Taxpayers for Vincent, 466 U.S. at 811, 104 S.Ct. at 2132. See, e.g. John Donnelly & Sons, 639 F.2d at 12-13 (on-premises signs are least aesthetically offensive because a structure has already violated the landscape); E.B. Elliott Advertising Co., 425 F.2d at 1151 (fact that ordinance prohibits commercial advertising signs in industrial and commercial areas while permitting point of sale signs does not destroy its reasonable relationship to constitutionally permissible objectives). By restricting the exception for on-premises signs to the activities carried on at the premises, the regulatory scheme reduces the number of such on-premises signs to those where the activity needs a sign. If it doesn’t, then there will be that many fewer signs. IV. The final consideration in evaluating a time, place, or manner restriction is whether the restriction “leave[s] open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). The magistrate in the present case incorrectly concluded that the Supreme Court’s decision in Metromedia controlled the outcome of this case. There, the plurality recognized that billboards are unique advertising devices that cannot easily be replaced by newspapers, television, or leaflets. Nevertheless, the San Diego ordinance in Metromedia imposed a city-wide ban on most signs. Indeed, the concurrence construed the ordinance as a total ban on billboard advertising. 453 U.S. at 525-26, 101 S.Ct. at 2901-02. Similarly, in John Donnelly & Sons, 639 F.2d 6, the Maine statute prohibited all signs except those authorized in the statute. Unlike the Maine statute and the San Diego ordinance, the Billboard Act and regulations leave open ample alternatives for communication of non-commercial and commercial messages. The prohibition against off-premises signs in the Billboard Act and regulations does not apply in areas zoned commercial or industrial prior to September 21, 1959. Signs unrelated to an on-premises activity are permitted in urban areas provided that the sign is located more than 660 feet from the interstate highway. Non-commercial and commercial messages are permitted anywhere provided that an activity relating to the message is conducted on the premises. Finally, the restrictions do not regulate the erection or maintenance of signs other than in areas near interstate or federal-aid primary highways. See City of Renton, 106 S.Ct. 925 (ordinance limiting adult theaters left reasonable alternative avenues of communication because ordinance left five percent of tne city open for use as adult theaters); State v. Lotze, 92 Wash.2d 52, 593 P.2d 811 (1979) (statute prohibiting all signs within 660 feet of interstate, federal-aid primary, and scenic highways excepted from restriction signs in commercial or industrial areas and signs advertising sale or lease of property and activity on property on which they were located, and directional and official signs in view of scenic highways, left ample alternative channels of communication). Although the cost of erecting a sign may be greater in unprotected areas, the first amendment “requires only that [Kentucky] refrain from effectively denying [appellees] a reasonable opportunity to [erect a sign within Kentucky].” City of Renton, 106 S.Ct. at 932. The Billboard Act and regulations do not effectively deny appellees a reasonable opportunity to erect a sign with a religious or political message. V. Accordingly, the judgment of the District Court is REVERSED. . The Billboard Act also prohibits the erection of any advertising device located outside of an urban area and beyond 660 feet of the right of way that is "legible and/or identifiable” from any interstate or federal-aid primary highway. Ky.Rev.Stat.Ann. § 177.841(2). Directional and official signs, signs advertising the sale or lease of property on which they are located, and signs advertising activities conducted on the property upon which they are located are exempt from this prohibition. . Section 177.860 also authorizes the Commissioner to prescribe by regulations reasonable standards for the advertising devices exempt from section 177.841. . The regulations specify that on-premise advertising devices may not advertise items incidental to the primary activity conducted on the property. For example, a supermarket may not advertise on its on-premise sign the products it sells. . The regulations permit off-premise signs in urban areas if they are more than 660 feet from the highway. In non-urban areas, off-premises signs are prohibited if "legible and/or identifiable” from the highway. . The magistrate recognized that signs advertising non-commercial activities would be allowed if those activities were being conducted on the property. However, the magistrate concluded that messages such "Abortion is Murder,” "Save the Whales," and "No Nukes” would not be permitted. . The City of Renton Court relied on Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), where.he Court concluded that zoning ordinances designed to combat undesirable secondary effects of adult theaters are to be reviewed under the standards relating to content neutral time, place, and manner regulations. The Court held that the City of Detroit could distinguish between adult theaters and other kinds of theaters because it was not regulating the dissemination of “offensive” speech. Id. at 71, 96 S.Ct. at 2453. . According to the Court, "The Council has sought to restrict the free flow of (the information relating to home sales] because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners’ self-interest and the corporate interest of the township: they will choose to leave town.” Linmark, 431 U.S. at 96, 97 S.Ct. at 1620. . The federal government, as amicus in the present case, correctly points out that the Supreme Court in Heffron upheld an off-site/~n-site distinction. As discussed above, the Court upheld a state fair rule restricting in-person sales, solicitations of funds, and the distribution of materials to booths. Any group wishing to engage in this type of speech had to acquire a "premises” at the fair. The Court did not find that this restriction amounted to a Question: What is the nature of the counsel for the appellant? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_respond2_8_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. AMERICAN RY. EXPRESS CO. v. ROWE et al. (Circuit Court of Appeals, First Circuit. August 17, 1926.) No. 1939. 1. Courts <©=>376 — Evidence <©=>317(18) — Attorney’s testimony as to statements made 3y deceased while in hospital after injury held admissible under statutes (G. L. Mass. o. 233, § 65; Rev. St. U. S. § 721 [U. S. Comp. St § 1538]). In action of tort to recover damages for conscious suffering and death of plaintiff’s testator, testimony of attorney as to statements made by deceased while in hospital after injury held admissible under 6. L. Mass. c. 233, § 65. and Rev. St. U. S. § 721 (U. S. Comp. St. § 1538). 2. Courts <S=>337. Rev. St. § 721, requiring state laws, except where Constitution, treaties, or statutes of United States otherwise require, shall be rules of decision in federal courts, does not apply to criminal eases (Comp. St. § 1538). 3. Courts <©=>376 — Evidence <©=>317(18) — That deceased’s deposition might have been taken held not to affect admissibility under statute of testimony as to statements made by him (G. L. Mass. c. 233, § 65; Rev. St. U. S. § 721 [U. S. Comp. St. § 1538]). In action for conscious suffering and death of plaintiff’s decedent, that deceased’s deposition might have been taken held not to affect admissibility, under G. L. Mass. e. 233, § 65, and Rev. St. U. S. § 721 (U. S. Comp. St. § 1538), of attorney’s testimony as to statements made by him after injury. Johnson, Circuit Judge, dissenting. In Error to the District Court of the United States for the District of Massachusetts; Elisha H. Brewster, Judge. Action by Bert Rowe and another, executors of the estate of George Rowe, against the American Railway Express Company. Judgment for plaintiffs, and defendant brings error. Affirmed. Austin M. Pinkham, of Boston, Mass., for plaintiff in error. John H. Casey, of Boston, Mass. (Ernest Foss, of Newburyport, Mass., on the brief), for defendants in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. This is an action of tort, brought by the executors of the estate of George Rowe, late of Seabrook, N. H. The declaration contains two counts; one to recover damages for conscious suffering and pain, and the other for the death of their testator, alleged to have been caused by the negligence of the defendant in operating a baggage truck on the platform of a railroad station in Newburyport, Mass., on October 27,1923. The deceased was 92 years of age, and by reason of collision with the truck sustained a fracture of one of his thighs. He was taken to a hospital in Newburyport, and later to his home in New Hampshire, where he died about 3 weeks later. No living witness saw the truek strike the deceased. The deceased was visited at the hospital, 3 or 4 days after the accident, by an attorney employed by his son, who was afterwards appointed one of the executors, and in response to questions of the attorney gave answers which covered what he knew in regard to how the accident took place. This statement was not introduced in evidence, but the lawyer who visited the deceased at the hospital was permitted, over the objection of the defendant, to testify, after refreshing his recollection from the written statement which had been prepared and signed by- the deceased, as to questions asked and the answers given. If this evidence was competent, we think the judgment below must be affirmed, for from all the evidence the jury would be warranted in finding: That the plaintiff’s intestate, a man 92 years of age, on the afternoon in question, was at the Boston & Maine station in Newburyport, Mass., for the purpose of taking a train for his home in Seabrook, N. H.; that shortly before the arrival of his train he left the men’s waiting room by the door leading to the platform, and turned towards the right, going in a northeasterly direction, with the view of entering the smoking car when the train arrived; that after proceeding a short distance on the platform, and when within 2 or 3 feet of the place occupied by the newspaper stand in the summer time, he was struck in the back by the defendant’s truck, knocked down, and received the injuries complained of; that at the time he came out of the station he did not observe the truek, and knew nothing about its approach until he was struck and knocked down; that the truck was some 9 feet long, 5 feet wide, and weighed 500 pounds, and at the time was being drawn by an express messenger, who was at its front end, having hold of the tongue or handle with his left hand, steering the truck, and having hold of the truck with his right hand, near the right comer, pulling it; that the truck had been taken from the express office at the southwesterly or Boston end of the station, and drawn northeasterly towards the Portsmouth or Seabrook end of the station, past the ladies’ entrance, the ticket office, and the gentlemen’s entrance; that the ticket office portion of the station extended out into the platform some 5 feet or more beyond the vestibules to the- gentlemen’s and ladies’ entrances; that the messenger, in his northeasterly course from the express office, had proceeded with the truek at a distance of some 4 feet from the station building, swerving out as he passed the ticket office, and swerving in again as he passed the gentlemen’s entrance; that as he passed the gentlemen’s entrance he gave no heed as to whether people were going in or out there, but did observe, as he passed the ticket office and the gentlemen’s entrance, people standing opposite thereto and midway of the platform near posts that were about 15 feet out from the entrance, and which supported the shed or canopy of the station; that he at no time observed the deceased, though he could, had he looked ; and that the accident was due to his failure to exercise due care in this particular. The crucial question is whether, under General Eaws of Massachusetts, e. 233,' § 65, the declarations made by the deceased in answer to the questions of the attorney were admissible in evidence. Section 65 is as follows : “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” The Massachusetts statute is an extension of the exceptions to the anti-hearsay rule. Brooks v. Holden, 175 Mass. 137, 140, 55 N. E. 802; Hall v. Reinherz, 192 Mass. 52, 77 N. E. 880. We hold that the evidence was admissible under R. S. § 721 (Comp. St. [1916] § 1538): “The laws of the several States, except where the Constitution, treaties, or statutes of the United States oherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in eases where they apply.” This section originated in section 34 of the Judiciary Act of 1789 (1 Stat. 92). It has been uniformly construed to cover state statutes changing the rules of evidence, except when thus direct conflict with a federal statute would result. A case exactly in point is Conn. M. L. Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 28 L. Ed. 708, in which it was held that the provision in the New York Civil Code excluding evidence of a doctor, obtained in a professional capacity, was binding on the courts of the United States sitting within that state in trials at common law, under R. S. § 721, that the laws of the several states, except where the Constitution, treaties, and statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States. In the opinion Mr. Justice Harlan says, citing R. S. § 721: “This has been uniformly construed as requiring the courts of the Union, in the trial of all civil cases at common law, not within the exceptions named, to observe, as rules of decision, the rules of evidence prescribed by the laws of the states in which such courts are held,” — citing Potter v. National Bank, 102 U. S. 163, 26 L. Ed. 111; Vance v. Campbell, 1 Black, 427, 17 L. Ed. 168; Wright v. Bales, 2 Black, 535, 17 L. Ed. 264; McNiel v. Holbrook, 12 Pet. 84, 9 L. Ed. 1009; Sims v. Hundley, 6 How. 1, 12 L. Ed. 319. (Italics supplied.) The exceptions to the rule also illustrate the proper application of the rule. In Whitford v. Clark County, 119 U. S. 522, 7 S. Ct. 306, 30 L. Ed. 500, a deposition was admitted, although the witness was actually in court, contrary to the provision of R. S. § 865. This was held wrong, the court saying (page 525 [7 S. Ct. 308]): “When the statutes of the United States make special provisions as to the competency or admissibility of testimony, they must be followed in the courts of the United States, and not the laws or the practice of the state in which the court is held when they are different.” Ex parte Fisk, 113 U. S. 713, 5 S. Ct. 724, 28 L. Ed. 1117, relied upon by the express company, was habeas corpus to release Fisk, who had been committed for contempt for failure to give his deposition before trial under the New York Code, which authorized the taking of deposition in a manner inconsistent with the deposition provisions of the Federal Code. Fisk was ordered set free. But Justice Miller in his opinion says, referring to R. S. § 720: “It has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the states prevail in those courts. * * * The New York statute would, if in force, repeal or supersede the act of Congress.” (Page 725 [5 S. Ct. 729].) All that was really decided in the Fisk Case was that the New York statutory provisions as to depositions could not be substituted for the federal statutory provisions as to depositions. The general rule still obtains that, unless there be conflict with a federal statute, the state rule as to evidence prevails. In Potter v. National Bank, 102 U. S. 163, 26 L. Ed, 111, R. S. § 858, was applied in a federal court sitting in Illinois, although the Illinois statute made the testimony of the executor incompetent. Section 858 provides (page 163): “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 the opposite party, or required to testify thereto by the court. In all other respects the laws of the state in which the court is 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 and in equity and admiralty.” But on page 165, the court (Harlan, J.) refers to R. S. § 721, as applicable, except where there is an express contrary inconsistent federal provision. In Sims v. Hundley, 6 How. 1, 6 (12 L. Ed. 319), a notary’s certificate of protest, made admissible under the statute of Mississippi, was held admissible in the federal court sitting in Mississippi; Taney, C. J., saying: “The rules of evidence prescribed by the statute of a state are always followed by the courts of the United States, when sitting in the state, in commercial eases as well as in others.” In McNiel v. Holbrook, 12 Pet. 84, 88, 9 L. Ed. 1009, Taney, C. J., held a statute of Georgia, making certain written instruments competent without proof of the handwriting, applicable in the federal court under what is now R. S. § 721. In Wright v. Bales, 2 Black, 535, 17 L. Ed. 264, the headnote accurately states the decision: “The statutory enactments of the States of the Union, in respect to evidence in cases at common law, are obligatory upon judges of the courts of the United States, who are bound to apply them as rules of decision.” The federal Circuit-Court (which was the trial court) had refused to apply the Ohio statute removing disqualifications because of-interest. The ease was sent back for a new trial. Vance v. Campbell, 1 Black, 427, 430, 17 L. Ed. 168, is to the same effect. In American Ag. Chem. Co. v. Hogan, 213 F. 416, 130 C. C. A. 52, this court held that the Massachusetts rule, allowing former testimony of a witness to he introduced for the purpose of impeaching his subsequent testimony without his attention having first been called to the former testimony, will be followed by the federal court sitting in this state. The opinion was by Brown, J., who says (page 420 [130 C. C. A. 56]): “Ordinarily the rules of evidence and the law of evidence of the state prevail in the federal court sitting within the limits of the state.” R. S. § 721, does not apply to criminal cases. See Logan v. United States, 144 U. S. 263, 299, 12 S. Ct. 617, 36 L. Ed. 429 et seq., where there is an instructive review of the statutes and earlier cases by Mr. Justice Gray. Compare United States v. Gwynne, 209 F. 993, 994. In Nelson v. First National Bank, 69 F. 798, 16 C. C. A. 425, Judge Sanborn states the rule as follows in dealing with the application of a staté statute to the certificate of protest of a promissory note, page 801, 16 C. C. A. 428: “And the rules of evidence prescribed by the statute of a state are declared by act of Congress to he ‘rules of decision in trials at common law in the courts of the United States,’ ‘except where the Constitution, treaties, or statutes of the United States otherwise require or provide.’ ” Compare 2 Foster’s Fed. Prac. (4th Ed.) § 372, and G. & C. Merriam Co. v. Syndicate Pub. Co. (C. C. A.) 207 F. 515, where Judge Hand sustained an exception to the hearsay rule (page 518) and his opinion was adopted by the Court of Appeals. Compare Wig-more, Ev. § § 1420, 1421, et seq.; 22 C. J. 216 et seq., notes and cases. Compare, also, 25 C. J. 817, and notes; Id. p. 828. In our opinion, the'authorities show that the court below was entirely right in applying the Massachusetts statute. The fact that Rowe’s deposition might perhaps have been taken does not bring the ease within the principles laid down in the Eisk Case and other similar cases. In fact, he died without his deposition being taken. The executors were not, therefore, offering a deposition taken in a manner other than that provided in the federal statutes, in the Eisk Case held applicable before the Act of March 9,1892 (27 Stat. 7 [Comp. St. § 1476]), changed the law. The Massachusetts statute is in no way inconsistent with any federal .statute. In Fourth Nat. Bank v. Albaugh, 188 U. S. 734, 737, 23 S. Ct. 450, 451, 47 L. Ed. 673, the court said: “In these days, when the whole tendency of decisions and legislation is to enlarge the admissibility of hearsay, where hearsay must be admitted or a failure of justice occur, we are not inclined to narrow the lines.” Cf. Mattox v. United States, 156 U. S. 237, 243, 244, 13 S. Ct. 50, 36 L. Ed. 917. Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235. The judgment of the District Court is affirmed, with costs to the defendants in error. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant? A. trustee in bankruptcy - institution B. trustee in bankruptcy - individual C. executor or administrator of estate - institution D. executor or administrator of estate - individual E. trustees of private and charitable trusts - institution F. trustee of private and charitable trust - individual G. conservators, guardians and court appointed trustees for minors, mentally incompetent H. other fiduciary or trustee I. specific subcategory not ascertained Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party In re Anthony R. MARTIN-TRIGONA, New Haven Radio, Inc., Debtors. Anthony R. MARTIN-TRIGONA, Plaintiff-Appellant, v. Richard BELFORD, Trustee of the Estate of Anthony R. Martin-Trigona, and Daniel Meister, Trustee of the Estate of New Haven Radio, Inc., Defendants-Appellees. No. 74, Docket 84-5033. United States Court of Appeals, Second Circuit. Argued Sept. 19, 1985. Decided Jan. 13, 1986. Anthony R. Martin-Trigona, pro se. Richard M. Coan, New Haven, Conn., submitted a brief for defendant-appellee Richard Belford, trustee of estate of Anthony R. Martin-Trigona. Irving H. Perlmutter, New Haven, Conn., submitted a brief for defendant-appellee Daniel Meister, trustee of the estate of New Haven Radio, Inc. Before LUMBARD, OAKES and NEWMAN, Circuit Judges. PER CURIAM: This is an appeal by Anthony R. Martin-Trigona from several orders of the District Court for the District of Connecticut (José A. Cabranes, Judge) entered in the course of his personal bankruptcy proceeding and the related Chapter 11 proceeding of New Haven Radio, Inc. Much of the pertinent background is set forth in our prior decision in In re Martin-Trigona, 760 F.2d 1334 (2d Cir.1985). The orders sought to be appealed are not all identified either in the notices of appeal or in Martin-Trigona’s pro se brief. This opinion will therefore consider those orders that have been sufficiently identified as subjects of this appeal. Each such order is affirmed for reasons set forth below. I. Martin-Trigona challenges the settlement of various claims. The first is a claim by Martin-Trigona against New Haven Radio, Inc. for $240,000 allegedly due for personal services rendered to the corporation. The second is a claim by Martin-Trigona against New Haven Radio, Inc. for $224,093 allegedly due for money loaned to the corporation. The third is actually a group of claims by Martin-Trigona against WHET, Inc., a Boston radio station, also in Chapter 11 proceedings; these claims are similar to Martin-Trigona’s claims against the New Haven station. The fourth is a claim by Martin-Trigona against Theodore Jones and others named as defendants in a suit brought by Martin-Trigona in the District Court for the District of Massachusetts (Civ. No. 79-361-T). These defendants had sold the Boston radio station to Martin-Tri-gona. He sued them for fraudulent misrepresentations in connection with the sale. The two claims against the New Haven station were settled by Richard Belford, trustee of the estate in Martin-Trigona’s personal bankruptcy, and Daniel Meister, trustee of the estate of New Haven Radio, Inc., for $5,000. The claim against the Boston station was settled by Belford and David J. Ferrari, trustee for the estate of the Boston station, for $35,000 plus designated items of office furnishings. The claim against the defendants in the District of Massachusetts case was settled by Bel-ford with their attorneys for $10,000, with the defendants maintaining the right to pursue Martin-Trigona for the $426,000 allegedly due under the purchase agreement. All four settlements were approved by Judge Cabranes in orders entered December 19, 1983. With respect to the two claims against the New Haven station, the $5,000 agreed to be paid was allocated entirely to the claim for services rendered; the loan claim was disallowed and dismissed in its entirety. On April 12, 1984, the District Court denied motions by Martin-Trigona to vacate the December 19 orders under Fed.R.Civ.P. 59. Though the claims were settled for sums that are small in relation to the amounts claimed, the reasonableness of the settlements is fully supported by the fact that throughout the protracted course of Martin-Trigona’s bankruptcy proceedings, he has steadfastly refused to furnish the trustee of his estate any information that would provide the trustee with a basis for prosecuting the claims or negotiating more favorable settlements. For example, in response to a December 23, 1982, letter from Belford’s attorney requesting, among other things, “all facts underlying any and all claims that you have against third parties,” Martin-Trigona replied, in a letter dated December 31, 1982, “I would not furnish you with the time of day. I consider you garbage and scum and respond to you only because I enjoy being able to call someone scum without fear of contradiction. You can write as many letters as you want, and you will get the same response.” Under the circumstances, Belford did well in obtaining $50,000. Apart from his usual tirade of accusations against all who have had anything to do with the matters in issue, interspersed with scurrilous invective and antiSemitic diatribes, appellant appears to challenge the procedural regularity of the orders approving the settlements. There is no valid basis for complaint. With respect to the two claims against the New Haven station, an initial hearing was held before Bankruptcy Judge Krechevsky on the objections filed by the trustee for New Haven Radio, Inc. Notice was sent to creditors. None appeared. Testimony at the hearing established that Martin-Trigona had rendered virtually no services to the corporation during the time for which he claimed compensation. Martin-Trigona presented no evidence in support of his claimed loan to the corporation. Settlement of the claims against the Boston station and the defendants in the District of Massachusetts lawsuit was considered at hearings begun before Judge Krechevsky, upon notice to all creditors. None appeared. After the bankruptcy proceedings were transferred to the District Court, a hearing on various pending matters, including the four settlements, was scheduled for June 6, 1983. Martin-Trigona failed to appear and was defaulted. Nevertheless, the District Court accorded Martin-Trigona a further opportunity to oppose the settlements. A subsequent hearing disclosed no basis to deny approval to any of the settlements. The only colorable objection now advanced is that notice of the hearing on the proposed settlement of the two claims against the New Haven station was not sent to Martin-Trigona’s creditors. However, former Bankruptcy Rule 203(a)(5), applicable to the matters currently in issue, permits settlement hearings to proceed without notice “for good cause shown.” The District Court reasonably concluded that notice was not required since no creditor had ever appeared at any prior hearings to compromise claims, no creditor had appeared at the hearing on the objection to these two claims (for which notice had been given), and the only objector, Martin-Trigona, was on notice of all proceedings and was afforded ample opportunity to participate. No creditor subsequently complained of lack of notice, nor has such complaint been raised by any creditor in the course of this appeal. Having defaulted on his debts to his creditors, invoked the protection of the bankruptcy court to fend them off, and then blocked lawful efforts to ascertain. whether he has assets to pay at least part of what he owes, Martin-Trigona now complains that his creditors have not received sufficient value in the settlements of his claims. Since his obstinate refusal to furnish information to support these claims was the principal reason for their settlement, his current concern for his creditors is disingenuous, to say the least. II. Appellant also challenges two orders of-the District Court, dates not specified, which purportedly denied individual and corporate claims to items of property allegedly owned either by him or by New Haven Radio, Inc. With respect to property claimed to be owned by Martin-Trigona personally, the record provides no basis for ordering the return of any such property since Martin-Trigona has resisted all efforts to ascertain what property he owns. His allegations of ownership in his brief cannot substitute for the sworn testimony, subject to cross-examination, that he remains obliged to furnish in the course of his own bankruptcy proceeding. With respect to property claimed to be owned by New Haven Radio, Inc., Martin-Trigona contends that upon confirmation of a plan of reorganization in the Chapter 11 proceeding, some unspecified property reverted to the corporate debtor by virtue of 11 U.S.C. § 1141(b) (1982). The reversion mandated by that provision, however, is explicitly subject to the provisions in the plan or the order confirming the plan. The plan in this case provided for payment to the corporate creditors funded by sale of all the assets. That sale was approved by the District Court and by this Court. In re Martin-Trigona, supra, 760 F.2d at 1347. No property reverted to the corporation. III. Finally, Martin-Trigona complains that the District Court set too low a bond for the trustee of the estate of New Haven Radio, Inc. The bond was originally set at $5,000 by Bankruptcy Judge Babitt, before the proceedings were transferred from the Southern District of New York to the District of Connecticut. On March 30, 1984, Judge Cabranes, after a hearing in which counsel for the radio station participated, raised the trustee’s bond to $100,000. Under the circumstances, we see no basis to question the amount of the bond. The assets of the corporation have been ordered to be sold for $430,000. In re Martin-Trigona, supra, 760 F.2d at 1336. At the time the sale was approved, unsecured claims and expenses were estimated to total $246,-000. Id. at 1346. The claim of the only secured creditor has been voluntarily reduced from $625,000 to approximately $184,000. Neither the secured creditor nor any of the unsecured creditors (except Martin-Trigona) has made any complaint as to the amount of the bond. Conclusion The orders of the District Court, identified herein, are affirmed. . Martin-Trigona’s papers far exceed the bounds of vigorous advocacy and could well be stricken as scurrilous. Counsel for the trustee of New Haven Radio, Inc. has explicitly refrained from moving to strike Martin-Trigona’s brief, fearing that the granting of such a motion would only delay ultimate resolution of the appeal. However, where papers are stricken as scurrilous, a court is not obliged to afford further opportunity to submit proper papers, especially when the improper papers are part of a regular pattern of scurrilous submissions. Martin-Trigona is now on notice that henceforth the submission of scurrilous papers will encounter the distinct risk that this court will strike such papers, sua sponte, without leave to refile, thereby subjecting him to default in connection with the matters being litigated. . Martin-Trigona was incarcerated for civil contempt for failure to answer questions concerning his assets. In re Martin-Trigona, 732 F.2d 170 (2d Cir.), cert. denied, - U.S. -, 105 S.Ct. 191, 83 L.Ed.2d 124 (1984). After several months of confinement, he was released only because of a determination that the civil contempt sanction no longer had a coercive effect. 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_genapel2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. Frank N. RAWLINGS, Appellant, v. NATIONAL MOLASSES CO., a corporation, Orita Land & Cattle Corporation, a corporation, Heber Cattle Feeders, a corporation, and Allied Cattle Feeders, a corporation, Appellees. No. 21947. United States Court of Appeals Ninth Circuit. May 14, 1968. Collins Mason (argued), William R. Graham, of Mason & Graham, Los Angeles, Cal., for appellant. William J. Wier, Jr. (argued), Arthur G. Connolly, Sr., Earl Christensen, of Connolly, Bove & Lodge, Wilmington, Del., Herman Selvin, Charles E. Jones, of Kaplan, Livingston, Goodwin, Berko-witz & Selvin, Beverly Hills, Cal., for appellees. Before HAMLEY and CARTER, Circuit Judges, and SMITH, District Judge. The Honorable Russell E. Smith, District Judge, District of Montana, sitting by designation. SMITH, District Judge. Plaintiff below, appeals from a judgment dismissing his action for patent infringement. In April, 1965, when this action was commenced, plaintiff and Feed Service Corporation (Feed Service) were the joint owners of a patent. Plaintiff believing that the patent had been infringed, sued the defendant, National Molasses Co., a corporation, and others. Feed Service, for business reasons of its own, would not join the action as a plaintiff and was made a party defendant. Prior to April, 1966, Feed Service assigned to plaintiff all of its rights in the patent, and by a separate instrument-plaintiff granted to Feed Service the following: “PATENT LICENSE GRANT WHEREAS, the undersigned FRANK N. RAWLINGS, of Caldwell, Idaho, now owns the entire right, title and interest in and to the following United States Letters Patents and each thereof: No. 2,748,001, dated May 29, 1956; and No. 2,807,546, dated September 24, 1957; and WHEREAS, FEED SERVICE CORPORATION, a Nebraska corporation, having its principal place of business in Crete, Nebraska, desires to acquire the hereinafter described nonexclusive license rights under said patents and each thereof; NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00), and other good and valuable consideration, receipt and adequacy of which are - hereby acknowledged, the undersigned FRANK N. RAWLINGS does hereby grant and convey to said FEED SERVICE CORPORATION, an unlimited, royalty-free, non-exclusive, and non-cancellable right and license to make, use and sell the products and use the methods of said patents and each of them, and to sublicense others so to do. The right and license herein granted shall be effective until said letters patents and each of them shall expire. IN WITNESS WHEREOF, the undersigned has executed this document at Caldwell, Idaho, this 27th day of December, 1965. /s/ Frank N. Rawlings FRANK N. RAWLINGS” * * * In April, 1966, after these documents had been executed, plaintiff dismissed the action with prejudice as to Feed Service and filed an amended and supplemental complaint alleging that he was the sole owner of the patents. Feed Service is not now a party. Defendants moved to dismiss the action for the reason that Feed Service was an indispensable party. The district court granted the motion. The absence of Feed Service as a party does not leave the defendants subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because no matter what the outcome of this litigation there is no substantial risk of the defendants being troubled with actions brought by Feed Service. Feed Service has no capacity to sue strangers for infringement of the patent. The common law and not the patent law gives an inventor the right to make, use and sell his invention. Patent law gives him the license to sue— the right to exclude others from using the invention. This monopoly right is the unique quality of the patent property right. The owner of the patent may transfer rights in the invention short of the right to exclude others from its use, and may retain for himself that right and the incidental right to collect damages for infringement. No words in the “Patent License Grant” convey any monopoly rights. The word “non-exclusive” appearing in the “Patent License Grant” points in the opposite direction. The right to use a patented device, with or without an accounting or the right to permit others to use it does not imply as a matter of law the right to exclude others. The cited decisions make it quite clear that an owner of something less than monopoly rights may not sue for patent infringement. This result is reached, not as a matter of semantics, but as a matter of policy. Defendants urge that since under 35 U.S.C. § 262 a joint owner of a patent may make, use and sell the invention without accounting to the other joint owner, Feed Service, which under the “Patent License Grant” may make, use, sell and license others to make, use and sell without accounting, is a joint owner and hence an indispensable party. Since in the determination of problems relating to parties we are no longer concerned with “abstract classifications or obligations”, we simply say that if Feed Service is a joint tenant (which we doubt) it is a joint tenant of something less than the whole patent right (if there can be that kind of a joint tenancy); and that Feed Service did not receive a right to exclude third persons from the use of the invention and is not a potential litigant with the defendants. Defendants make the further point that the arrangement between plaintiff and Feed Service was accomplished for the sole purpose of permitting plaintiff to bring this action without joining Feed Service as a party plaintiff or defendant. We assume that to be true. Defendants urge that the transaction was a sham. The documents were in fact executed and nothing in the record indicates that as between Feed Service and plaintiff they are either void or voidable. If not, then the purpose underlying their execution is of no concern to the defendants. Defendants have moved to dismiss the appeal on the ground that there is no final judgment. We find this contention to be without merit and the motion is denied. The judgment of the district court is reversed and the cause remanded for further proceedings not inconsistent herewith. . Fed.R.Civ.P. 19(a) (2) (ii). . 35 U.S.C. § 154, Crown Die & Tool Co. v. Nye Tool & Machine Works, 261 U.S. 24, 43 S.Ct. 254, 67 L.Ed. 516 (1923); Six Wheel Corporation v. Sterling Motor Truck Co., 50 F.2d 568 (9 Cir. 1931). . Waterman v. Mackenzie, 138 U.S. 252, 11 S.Ct. 334, 34 L.Ed. 923 (1891); Independent Wireless Tel. Co. v. Radio Corporation of America, 269 U.S. 459, 466, 46 S.Ct. 166, 70 L.Ed. 357 (1926); Western Electric Co. v. Pacent Reproducer Corporation, 42 F.2d 116 (2 Cir. 1930) cert. den. 282 U.S. 873, 51 S.Ct. 78, 75 L.Ed. 771 (1930); Agrashell, Inc. v. Hammons Products Company, 352 F.2d 443 (8 Cir. 1965). . Six Wheel Corporation v. Sterling Motor Truck Co., supra, note 2. . See, Gayler v. Wilder, 51 U.S. (10 How.) 477, 13 L.Ed. 504 (1850); Crown Die & Tool Co. v. Nye Tool & Machine Works, supra, note 2. . The fallacy in the defendants’ syllogism becomes apparent when it is translated into slightly more earthy terms. Thus: All judges have a right to use the lavatory in the court house. Bailiffs have a right to use the lavatory in the court house. Therefore, bailiffs are judges. . See Provident Tradesmens Bank and Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 n. 12 (1968). Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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. BIG COUNTRY FOODS, INC., an Alaska corporation, Plaintiff-Appellant, v. BOARD OF EDUCATION OF the ANCHORAGE SCHOOL DISTRICT, ANCHORAGE, ALASKA; Department of Agriculture; Richard E. Lyng, Secretary of Agriculture; William Demmert, Commissioner of Education for the State of Alaska, Defendants-Appellees. No. 88-4018. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 5, 1988. Decided Feb. 28, 1989. Sema E. Lederman, Hansen & Lederman, Anchorage, Alaska, for plaintiff-appellant. Neil J. Evans, Asst. U.S. Atty., and Susan R. Sharrock, Thomas E. Wagner, Asst. Atty. Gen., Hellen, Partnow & Condon, Anchorage, Alaska, for defendants-appellees. Before BROWNING, WALLACE and BRUNETTI, Circuit Judges. OPINION WALLACE, Circuit Judge: Big Country Foods, Inc. (Big Country) appeals the district court’s denial of its motion for a preliminary injunction. Big Country, after unsuccessfully bidding for a contract to supply milk to the Anchorage School District for the 1988-89 school year, sought to enjoin the school district from entering into a contract with any supplier other than itself. Big Country also sought to enjoin both the Secretary of the United States Department of Agriculture and Alaska’s Commissioner of Education from authorizing the disbursement of federal funds to the Anchorage School District until its application for permanent injunction is heard. Big Country argued that Alaska statutory procedures used to award the contract violate the federal Constitution’s commerce clause and federal statutes governing the school district’s procurement of milk. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm. I Big Country is a distributor of milk harvested in the State of Washington. It has been the successful bidder for the contract to supply milk to the Anchorage School District in five of the last eight years. The Anchorage School District receives, via the State of Alaska, federal funds which subsidize the purchase of milk for Anchorage school children. Federal funds are granted to the State of Alaska as a voluntary participant in the Federal School Breakfast Program, 42 U.S.C. § 1771, et seq., and the National School Lunch Program, 42 U.S.C. § 1751, et seq. Participants in these federal programs are required to procure milk “in a manner that provides maximum open and free competition.” Uniform Federal Assistance Regulations, 7 C.F.R. § 3015.182 (1988). Sometime between May 11 and 26, 1988, Big Country submitted a bid of $360,000 for the contract to supply milk to the Anchorage School District for the 1988-89 school year. Two other suppliers, Northern Dairies and Matanuska Maid Dairy, submitted bids of $384,625 and $385,000, respectively. Pursuant to an Alaskan preference statute, Alaska Stat. § 36.15.050(a) (1988), which requires schools receiving state funds to purchase dairy products harvested in the State of Alaska if the price is no more than seven percent higher than products of like quality harvested outside the state, the contract was awarded to Ma-tanuska Maid Dairy. Big Country filed this motion for a preliminary injunction, claiming that the Alaskan preference statute violates the federal Constitution’s dormant commerce clause and the requirement under federal regulations of free and open competition for the procurement of milk. II The merits of Big Country’s claims raise a plethora of fascinating and complex issues, such as standing, mootness, ripeness, federalism, statutory interpretation, and the scope of the commerce clause. We need not, indeed cannot, resolve any of these issues due to the posture of this case. Our review of an order denying a preliminary injunction is very limited. Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 673 (9th Cir.1988) (Caribbean Marine); Oakland Tribune, Inc. v. Chronical Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985) (Oakland Tribune); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752-53 (9th Cir.1982) (Sports Form). The grant or denial of a preliminary injunction lies within the discretion of the district court. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987), (Odessa Union); Zepeda v. United States Immigration and Naturalization Service, 753 F.2d 719, 724 (9th Cir.1983) (Zepeda); Sports Form, 686 F.2d at 752. We will reverse “only if the district court relied on an erroneous legal premise or abused its discretion.” Sports Form, 686 F.2d at 752. We will not reverse merely because we would have arrived at a different result. Id. The district court relies on an erroneous legal premise “if the court does not employ the appropriate legal standards which govern the issuance of a preliminary injunction.” Id., citing Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). “To determine whether there has been an abuse of discretion, the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... The [reviewing] court is not empowered to substitute its judgment for that of the [district court].’ ” Sports Form, 686 F.2d at 752, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (citations omitted). We emphasize again the limited scope of our review of a district court order granting or denying a preliminary injunction. We do so because we are concerned that parties appeal such orders for the purpose of ascertaining, prematurely, our views on the merits. As we repeatedly have cautioned, our disposition in these appeals offers little if any guidance on the proper resolution of the underlying merits. Caribbean Marine, 844 F.2d at 673; Zepeda, 753 F.2d at 724; Sports Form, 686 F.2d at 753. The purpose of a preliminary injunction is to preserve rights pending resolution of the merits of the case by the trial. It ordinarily does not obviate the need to proceed with preparation for trial and trial. An appeal of the district court’s decision on a motion for a preliminary injunction often will result in unnecessary delay to the parties and inefficient use of judicial resources. In this case, for example, Big Country probably could have secured a disposition on the merits of a motion for a permanent injunction in less time than it took to proceed with this appeal. It appears, however, that this case has lain dormant in the district court: Big Country has done nothing towards resolving its action for permanent relief. We question the appropriateness of Big Country’s attempt to use the appellate process to resolve a question that must first be resolved in the district court. Apparently Big Country did not heed our admonitions in Caribbean Marine, Zepeda, and Sports Form. Ill To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Odessa Union, 833 F.2d at 174; Sports Form, 686 F.2d at 753; see also Oakland Tribune, 762 F.2d at 1376. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Odessa Union, 833 F.2d at 174; Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987) (2-1) (Arcamuzi); Oakland Tribune, 762 F.2d at 1376. Under either formulation, the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury. Arcamuzi, 819 F.2d at 937; Oakland Tribune, 762 F.2d at 1376; American Passage Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir.1985). Big Country argues in its opening brief that the irreparable injury it will suffer if injunctive relief is not granted is the “loss of a contract.” This loss is irreparable, Big Country asserts, because even if it is successful on the merits, Alaskan law provides no monetary damages for this kind of challenge. Big Country does not articulate the form of injury that “loss of a contract” will cause it to incur, apart from its ambiguous assertion late in its brief that “[i]n the absence of injunctive relief, Big Country will lose a $360,000 contract, a major source of income for a small company.” Income is, of course, not the same as profits. Yet we assume, in light of this cryptic reference and Big Country’s argument with respect to the unavailability of monetary damages under Alaskan law, that Big Country is referring to pecuniary injury— lost profits. If so, we need not decide if Big Country has an adequate remedy at law for this injury. The record is barren of evidence of lost profits. Big Country merely filed an affidavit indicating that its bid was for $360,000. The gross amount of a contract in no way reflects the amount of profit Big Country may have realized had it been awarded the contract. As far as we know, Big Country may have lost money on the contract. Big Country offers for the first time in its reply brief a new theory of damages. It suggests that its real injury is the inability to participate in a fair bidding procedure; and this injury, it suggests, is irreparable even without a showing of lost profits. For this unique proposition, Big Country cites an out-of-circuit district court decision, United Technologies Communications Co. v. Washington County Board, 624 F.Supp. 185, 188 (D.Minn.1985). United Technologies, in turn, cites no direct authority for this proposition, nor has United Technologies been subsequently cited by any court for this theory. In light of the general rule that an appellant cannot raise a new theory for the first time in its reply brief, we refuse to consider this novel notion of irreparable injury. Oakland Tribune, 762 F.2d at 1376 (refusing to recognize novel theory of irreparable injury not raised in opening brief); see also Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 924 (9th Cir.1988). Although the district court did not find that Big Country failed to show irreparable injury, we may affirm on any ground supported by the record. Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1288 (9th Cir.1985). We hold that the district court did not abuse its discretion in denying Big Country’s motion for a preliminary injunction. 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:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. ANDRUS, SECRETARY OF THE INTERIOR v. UTAH No. 78-1522. Argued December 5, 1979 Decided May 19, 1980 SteveNS, J., delivered the opinion of the Court, in which BrenNAN, Stewart, White, and Marshall, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and BlackmuN and Rehnquist, JJ., joined, post, p. 520. Peter Buscemi argued the cause pro hac vice for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, and Carl Strass. Richard L. Dewsnup, Assistant Attorney General of Utah, argued the cause for respondent. With him on the brief were Robert B. Hansen, Attorney General, and Dallin W. Jensen, Michael M. Quealy, and Paul E. Reimann, Assistant Attorneys General. Briefs of amici curiae urging affirmance were filed by George Deukme-jian, Attorney General of California, N. Gregory Taylor and Jan S. Stevens, Assistant Attorneys General, and Stephen H. Mills, Deputy Attorney General, Robert K. Corbin, Attorney General of Arizona, J. D. MacFarlane, Attorney General of Colorado, John F. North, Special Assistant Attorney General of Montana, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, and William 0. Jordan, Special Assistant Attorney General, James A. Redden, Attorney General of Oregon, and Peter S. Herman, Slade Gorton, Attorney General of Washington, and Theodore 0. Tone and J. Lawrence Coniff, Jr., Assistant Attorneys General, and John D. Troughton, Attorney General of Wyoming, for the State of California et al.; and by David H. Leroy, Attorney General of Idaho, and W. Hugh O’Riordan, Deputy Attorney General, for the State of Idaho. Briefs of amici curiae were filed by Richard C. Cahoon for Justheim Petroleum Co.; and by Stephen G. Boy den and Scott C. Pugsley for the Ute Indian Tribe of the Uintah and Ouray Reservation. Mr. Justice Stevens delivered the opinion of the Court. The State of Utah claims the right to select extremely valuable oil shale lands located within federal grazing districts in lieu of and as indemnification for original school land grants of significantly lesser value that were frustrated by federal pre-emption, or private entry, prior to survey. The question presented is whether the Secretary of the Interior is obliged to accept Utah’s selections of substitute tracts of the same size as the originally designated sections even though there is a gross disparity between the value of the original grants and the selected substitutes. We hold that the Secretary’s “grossly disparate value” policy is a lawful exercise of the broad discretion vested in him by § 7 of the Taylor Grazing Act of 1934, 48 Stat. 1272, as amended in 1936, 49 Stat. 1976, 43 U. S. C. § 315f, and is a valid ground for refusing to accept Utah’s selections. Utah became a State in 1896. In the Utah Enabling Act of 1894, Congress granted Utah, upon admission, four numbered sections in each township for the support of public schools. The statute provided that if the designated sections had already “been sold or otherwise disposed of” pursuant to another Act of Congress, “other lands equivalent thereto... are hereby granted.” The substitute grants, denominated “indemnity lands” were “to be selected within the State in such manner as [its] legislature may provide with the approval of the Secretary of the Interior.” Because much of the State was not surveyed until long-after its admission to the Union, its indemnity or “in lieu” selections were not made promptly. On September 10, 1965, Utah filed the first of 194 selection lists with the Bureau of Land Management of the Department of the Interior covering the land in dispute in this litigation. The 194 indemnity-selections include 157,255.90 acres in Uintah County, Utah, all of which are located within federal grazing districts created pursuant to the Taylor Grazing Act. In January 1974, before Utah’s selection lists had been approved or disapproved, the Governor of Utah agreed that the Secretary of the Interior could include two tracts comprising 10,240 acres of selected indemnity lands in an oil shale leasing program, on the understanding that the rental proceeds would ultimately be paid to the State if its selections were approved. The proceeds of the leases are of substantial value. In February 1974, the Secretary advised the Governor that he would not approve any indemnity applications that involved “grossly disparate values.” He wrote: “As you know, the Department of the Interior has not as yet acted upon the State’s [indemnity] applications. The principal question presented by the applications is whether pursuant to Section 7 of the Taylor Grazing Act, 48 Stat. 1272 (1934), as amended, 43 U. S. C. § 315f (1972), the Department may refuse to convey applied-for lands to a State where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity. In January 1967, the then Secretary of the Interior adopted the policy that in the exercise of his discretion under, inter alia, Section 7 of the Taylor Grazing Act, he would refuse to approve indemnity applications that involve grossly disparate values. That policy remains in effect. “In the present case, although the land values are not precisely determined, it appears that the selections involve lands of grossly disparate values, within the meaning of the Department’s policy. While the Department is not yet prepared to adjudicate the State’s applications, I feel it is appropriate at this time to advise you that we will apply the above-mentioned policy in that adjudication.” The State promptly filed this action in the United States District Court for the District of Utah. The facts were stipulated, and Judge Ritter entered summary judgment in favor of the State. He held that if Utah’s selections satisfy all of the statutory criteria governing indemnity selections when filed, the Secretary has no discretion to refuse them pursuant to a “grossly disparate value” policy. The Court of Appeals for the Tenth Circuit affirmed, Utah v. Kleppe, 586 F. 2d 756 (1978), holding that § 7 of the Taylor Grazing Act gave the Secretary no authority to classify land as eligible for selection and that the State had a right to select indemnity land of equal acreage without regard to the relative values of the original grants and the indemnity selections. Because the dispute between the parties involves a significant issue regarding the disposition of vast amounts of public lands, we granted certiorari. 442 U. S. 928. We believe that the Court of Appeals and the District Court failed to give proper effect to the congressional policy underlying the provision for indemnity selection, and specifically misconstrued § 7 of the Taylor Grazing Act as amended in 1936. We therefore reverse. I The Enabling Act of each of the public-land States admitted into the Union since 1802 has included grants of designated sections of federal lands for the purpose of supporting public schools. Whether the Enabling Act contained words of present or future grant, title to the numbered sections did not vest in the State until completion of an official survey. Prior to survey, the Federal Government remained free to dispose of the designated lands “in any manner and for any purpose consistent with applicable federal statutes.” In recognition of the fact that the essentially random grants in place might therefore be unavailable at the time of survey for a variety of reasons, Congress authorized grants of indemnity or “lieu” lands of equal acreage. As Utah correctly emphasizes, the school land grant was a “solemn agreement” which in some ways may be analogized to a contract between private parties. The United States agreed to cede some of its land to the State in exchange for a commitment by the State to use the revenues derived from the land to educate the citizenry. The State’s right to select indemnity lands may be viewed as the remedy stipulated by the parties for the Federal Government’s failure to perform entirely its promise to grant the specific numbered sections. The fact that the Utah Enabling Act used the phrase “lands equivalent thereto” and described the substituted lands as “indemnity lands” implies that the purpose of the substitute selections was to provide the State with roughly the same resources with which to support its schools as it would have had had it actually received all of the granted sections in place. Thus, as is typical of private contract remedies, the purpose of the right to make indemnity selections was to give the State the benefit of the bargain. The history of the general statutes relating to land grants for school purposes confirms this view. ■ Thus, for example, in 1859, when confronted with the fact that many settlers had occupied unsurveyed lands that had been included in school grants, Congress confirmed the settlers’ claims and granted to the States “other lands of like quantity.” Ch. 58, 11 Stat. 385. The substitution of an equal quantity of land provided the States a rough measure of equal value. The school land grants gave the States a random selection of public lands subject, however, to one important exception. The original school land grants in general, and Utah’s in particular, did not include any numbered sections known to be mineral in character by the time of survey. United States v. Sweet, 245 U. S. 563. This Court so held even though the Utah Enabling Act “neither expressly includes mineral lands nor expressly excludes them.” Id., at 567. The Court’s opinion stressed “the practice of Congress to make a distinction between mineral lands and other lands, to deal with them along different lines, and to withhold mineral lands from disposal save under laws specially including them.” Ibid. Mineral lands were thus excluded not only from the original grants in place but also from the indemnity selections. Since mineral resources provide both the most significant potential source of value and the greatest potential for variation in value in the generally arid western lands, the total exclusion of mineral lands from the school land grants is consistent with an intent that the States’ indemnity selections of equal acreage approximate the value of the numbered sections lost. In 1927, some nine years after the decision in United States v. Sweet, supra, Congress changed its policy to allow grants of school lands to embrace numbered sections that were mineral in character. But the 1927 statute did not expand the kinds of land available for indemnity selections. Thus, after 1927 even if the lost school lands were mineral in character, a State was prohibited from selecting mineral lands as indemnity. It was not until 1958 that Congress gave the States the right to select mineral lands to replace lost school lands, and that right was expressly conditioned on a determination that the lost lands were also mineral in character. 72 Stat. 928, 43 U. S. C. § 852. See n. 5, supra. For 30 years, then, States were not even permitted to select lands roughly equivalent in value to replace lost mineral lands. The condition in the 1958 statute, that the lost lands be mineral in character before mineral lands could be selected as indemnity, rather clearly reflects an intention to restore the character of the indemnity selection as a substitute of roughly equal value. Throughout the history of congressional consideration of school land grants and related subjects — a history discussed at great length in the voluminous briefs submitted to us — we find no evidence whatever of any congressional desire to have the right to select indemnity lands do anything more than make the States whole for the loss of value resulting from the unavailability of the originally designated cross section of lands within the State. There is certainly no suggestion of a purpose at any time, including 1958, to allow the States to obtain substantially greater values through the process of selecting indemnity land. Thus, viewing the program in this broad historical perspective, it is difficult to identify any sensible justification for Utah’s position that it is entitled to select any mineral lands it chooses regardless of the value of the school sections lost. Nevertheless, Utah is quite correct in arguing that the Secretary has no power to reject its selections unless Congress has given it to him. We have no doubt that it has. II Prior to the 1930’s, cases in this Court had made it perfectly clear that the Federal Government retained the power to appropriate public lands embraced within school grants for other purposes if it acted in a timely fashion. On the other hand, it was equally clear that the States’ title to unappropriated land in designated sections could not be defeated after survey, and that their right to indemnity selections could not be rejected if they satisfied the statutory criteria when made, and if the selections were filed before the lands were appropriated for other purposes. The authority of the Secretary of the Interior was limited to determining whether the States’ indemnity selections met the relevant statutory criteria. See Wyoming v. United States, 255 U. S. 489; Payne v. New Mexico, 255 U. S. 367, 371. In the 1930’s, however, dissatisfaction with the rather loose regime governing use and disposition of unappropriated federal lands, prompted mostly by the waste caused by unregulated stock grazing, led to a series of congressional and executive actions that are critical to this case. By means of these actions, all unappropriated federal lands were withdrawn from every form of entry or selection. The withdrawal did not affect the original school land grants in place, whether or not surveyed, but did include all lands then available for school indemnity selections. The lands thus withdrawn were thereafter available for indemnity selections only as permitted by the Secretary of the Interior in the exercise of his discretion. The sequence of events was as follows. In 1934, Congress enacted the Taylor Grazing Act “[t]o stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes.” 48 Stat. 1269. Section 1 authorized the Secretary of the Interior to establish grazing districts in up to 80 million acres of unappropriated federal lands; the establishment of such a district had the effect of withdrawing all lands within its boundaries “from all forms of entry of settlement.” That section also expressly provided that “Nothing in this Act shall be construed in any way... to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State... Thus, § 1 preserved the original school land grants, whether or not the designated sections had already been identified by survey, but the statute made no provision for school indemnity selections. Because the Taylor Grazing Act as originally passed in 1934 applied to less than half of the federal lands in need of more orderly regulation, President Roosevelt promptly issued Executive Order No. 6910 withdrawing all of the unappropriated and unreserved public lands in 12 Western States, including Utah, from “settlement, location, sale or entry” pending a determination of the best use of the land. The withdrawal affected the land covered by the Taylor Grazing Act as well as land not covered by the statute. The President’s authority to issue Executive Order No. 6910 was expressly conferred by the Pickett Act. Congress responded to Executive Order No. 6910 by amending the Taylor Grazing Act in 1936 in two respects that are relevant to this case. First, it expanded the acreage subject to the Act, see n. 18, supra. Second, it revised § 7 of the Act, see n. 17, supra, to give the Secretary the authority, in his discretion, to classify both lands within grazing districts and lands withdrawn by the recent Executive Order as proper not only for homesteading, but also, for the first time, for satisfaction of any outstanding “lieu” rights, and to open such lands to “selection.” The section, thus amended, provided in pertinent part: “The Secretary of the Interior is authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order... or within a grazing district, which are... proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws.... Such lands shall not he subject to disposition... until after the same have been classified....” (Emphasis added.) The changes in this section were apparently prompted in part by the fact that while the Taylor Grazing Act withdrawal preserved the States’ school grants in place, no provision had been made in the 1934 version for the States’ indemnity selections from land within grazing districts even though the States had expressed the concern that “the establishment of a grazing district would restrict the State in its indemnity selections.” While this omission may not have been critical in 1934 when the Act was passed — since only about half of the unappropriated federal land was then affected — by 1936, as a consequence of Executive Order No. 6910, no land at all was available in the public domain for indemnity selections. It is therefore reasonable to infer that the amendments to § 7 were at least in part a response to the complaint expressed in congressional hearings in 1935, that there was no land available under current law for indemnity-selections. The 1936 amendment to § 7 rectified that problem, but did not give the States a completely free choice in making indemnity selections. Rather, Congress decided to route the States’ selections through § 7, and thereby to condition their acceptance on the Secretary’s discretion. That decision was consistent with the dominant purpose of both the Act and Executive Order No. 6910 to exert firm control over the Nation’s land resources through the Department of the Interior. In sum, the Taylor Grazing Act, coupled with the withdrawals by Executive Order, “locked up” all of the federal lands in the Western States pending further action by Congress or the President, except as otherwise permitted in the discretion of the Secretary of the Interior for the limited purposes specified in § 7. This was Congress’ understanding of the Taylor Grazing Act in 1958 when it amended the school land indemnity selection statute to permit selection of mineral lands. Both the House and Senate Reports specifically noted and adopted the Department of the Interior’s assumption “ 'that nothing in this bill is intended to affect the rights or duties of States under other laws’ and, in particular, 'that no change is intended to be made in section 7 of the Taylor Grazing Act, as amended (43 U. S. C., sec. 315f).’ ” H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2 (1958). Since Congress was specifically dealing with school indemnity selections, the Reports make it perfectly clear that Congress deemed school indemnity selections to be subject to § 7 of the Taylor Grazing Act. And since the congressional decision in 1958 to allow school land indemnity selections to embrace mineral lands was expressly conditioned on a determination that the lost school lands were also mineral in character, it is manifest that Congress did not intend to grant the States any windfall. It only intended to restore to the States a rough approximation of what was lost. See n. 14, supra. We therefore hold that the 1936 amendment to the Taylor Grazing Act conferred on the Secretary the authority in his discretion to classify lands within a federal grazing district as proper for school indemnity selection. And we find no merit in the argument that the Secretary’s “grossly disparate value” policy constitutes an abuse of the broad discretion thus conferred. On the contrary, that policy is wholly faithful to Congress’ consistent purpose in providing for indemnity selections, to give the States a rough equivalent of the school land grants in place that were lost through pre-emption or private entry prior to survey. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. “That upon the admission of said State [Utah] into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State, and where such sections or any parts thereof have been sold or otherwise disposed of by or under the authority of any Act of Congress other lands equivalent thereto, in legal subdivisions of not less than one quarter section and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the support of common schools, such indemnity lands to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior: Provided, That the second, sixteenth, thirty-second, and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this Act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this Act until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain.” 28 Stat. 109 (emphasis added). The District Court found that as of May 25, 1976, $48,291,840 had been accumulated. App. to Pet. for Cert. 62a. It should be noted that these proceeds were derived from only 10,240 acres out of the total area selected comprising over 157,000 acres. Suggested guidelines of the Department of the Interior provide that the policy will not be applied unless the estimated value of the selected lands exceeds that of the base lands by more than $100 per acre or 25% whichever is greater. If the values are grossly disparate using those criteria, the case will be submitted to the Washington office for evaluation of all the circumstances. App. 44-45. Letter of February 14, 1974, from Rogers Morton, Secretary of the Interior, to Calvin Rampton, Governor of the State of Utah. Id., at 61. The statute provides, in part: “§ 851. Deficiencies in grants to State by reason of settlements, etc., on designated sections generally “Where settlements with a view to preemption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections or either of them have been or shall be granted, reserved, or pledged for the use of schools or colleges in the State in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State, in lieu of such as may be thus taken by preemption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted and may be selected, in accordance with the provisions of section 852 of this title, by said State where sections sixteen or thirty-six are, before title could pass to the State, included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States: Provided, That the selection of any lands under this section in lieu of sections granted or reserved to a State shall be a waiver by the State of its right to the granted or reserved sections. And other lands of equal acreage are also appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the State shall be entitled to select indemnity lands to the extent of section for section in lieu of sections therein which have been or shall be granted, reserved, or pledged; but such selections may not be made within the boundaries of said reservation: Provided, however, That nothing in this section contained shall prevent any State from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein.” 43 U. S. C. § 851. “§ 852. Selections to supply deficiencies of school lands “(a) Restrictions “The lands appropriated by section 851 of this title shall be selected from any unappropriated, surveyed or unsurveyed public lands within the State where such losses or deficiencies occur subject to the following restrictions: “(1) No lands mineral in character may be selected by a State except to the extent that the selection is being made as indemnity for mineral lands lost to the State because of appropriation before title could pass to the State; “(2) No lands on a known geologic structure of a producing oil or gas field may be selected except to the extent that the selection is being made as indemnity for lands on such a structure lost to the State because of appropriation before title could pass to the State; and “(3) Land subject to a mineral lease or permit may be selected if none of the land subject to that lease or permit is in a producing or producible status, subject, however, to the restrictions and conditions of the preceding and following paragraphs of this subsection.” 43 U. S. C. §852 (a). Title 43 U. S. C. § 853 provides that in applying this statute to Utah, the words “sections sixteen and thirty-six” also include sections,two and thirty-two. “Because the western states are the ones most recently admitted to the Union and because Utah and Arizona are two of the three states that received particularly large grants, the remaining indemnity selection rights are concentrated in seven western states. Utah and Arizona alone hold nearly 70% of the outstanding indemnity rights. The approximate number of acres still to be selected in each state (and thus the approximate number of acres potentially affected by this lawsuit) is as follows: Arizona, 170,000 acres; California, 108,000 acres; Colorado, 17,000 acres; Idaho, 27,000 acres; Montana, 22,900 acres; Utah, 225,000 acres; and Wyoming, 1,100 acres.” Brief for Petitioner 4-5, n. 2. “The first enactment for the sale of public lands in the western territory provided for setting apart section sixteen of every township for the maintenance of public schools (Ordinance of 1785; Cooper v. Roberts, 18 How. 173, 177); and, in carrying out this policy, grants were made for common school purposes to each of the public-land States admitted to the Union. Between the years 1802 and 1846 the grants were of every section sixteen, and, thereafter, of sections sixteen and thirty-six. In some instances, additional sections have been granted.” United States v. Morrison, 240 U. S. 192, 198 (footnotes omitted). “It has consistently been held that under the terms of the grants hitherto considered by this Court, title to unsurveyed sections of the public lands which have been designated as school lands does not pass to the State upon its admission into the Union, but remains in the Federal Government until the land is surveyed. Prior to survey, those sections are a part of the public lands of the United States and may be disposed of by the Government in any manner and for any purpose consistent with applicable federal statutes. If upon survey it is found that the Federal Government has made a previous disposition of the section, the State is then entitled to select lieu lands as indemnity in accordance with provisions incorporated into each of the school-land grants. The interest of the State vests at the date of its admission into the Union only as to those sections which are surveyed at that time and which previously have not been disposed of by the Federal Government.” United States v. Wyoming, 331 U. S. 440, 443-444 (footnote omitted). These include the establishment of reservations for Indians or federal military purposes, and entries by individuals under the homestead laws. See, e. g., Wisconsin v. Lane, 245 U. S. 427, 432-433. See Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U. S. 634, 639-640: “Until the status of the lands was fixed by a survey, and they were capable of identification, Congress reserved absolute power over them; and if in exercising it the whole or any part of a 16th or 36th section had been disposed of, the State was to be compensated by other lands equal in quantity, and as near as may be in quality.” (Emphasis added.) Under the 1891 general indemnity selection statute then in effect, selections were limited to “unappropriated, surveyed public lands, not mineral in character.” 26 Stat. 796-797. The Act of January 25, 1927, 44 Stat. 1026-1027, provided that “the several grants to the States of numbered sections in place for the support or in aid of common or public schools be, and they are hereby, extended to embrace numbered school sections mineral in character.” See 43 U. S. C. § 870. “[T]his Act shall not apply to indemnity or lieu selections or exchanges or the right hereafter to select indemnity for numbered school sections in place lost to the State under the provisions of this or other Acts, and all existing laws governing such grants and indemnity or lieu selections and exchanges are hereby continued in full force and effect.” 44 Stat. 1027, 43 U. S. C. § 871. “Under present law the States are restricted to selecting non-mineral lands to replace forfeited school sections even when these sections are mineralized. There appears to be little equity in this situation.” H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2 (1958). “The objective of this legislation is merely to make whole the States which have pending in lieu selections of lands for preempted school sections.” Remarks of Senator Watkins of Utah, 104 Cong. Rec. 11921 (1958). See H. R. Rep. No. 903, 73d Cong., 2d Sess. (1934); 78 Cong. Rec. 11139 (1934) (remarks of Sen. Adams of Colorado). “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his discretion, by order to establish grazing districts or additions thereto and/or to modify the boundaries thereof, not exceeding in the aggregate an area of eighty million acres of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States (exclusive of Alaska), which are not in national forests, national parks and monuments, Indian reservations, re-vested Oregon and California Railroad grant lands, or revested Coos Bay Wagon Road grant lands, and which in his opinion are chiefly valuable for grazing and raising forage crops: Provided, That no lands withdrawn or reserved for any other purpose shall be included in any such district except with the approval of the head of the department having jurisdiction thereof. Nothing in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands, and which is maintained pursuant to such law except as otherwise expressly provided in this Act, nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State, nor as limiting or restricting the power or authority of any State as to matters within its jurisdiction. Whenever any grazing district is established pursuant to this Act, the Secretary shall grant to owners of land adjacent to such district, upon application of any such owner, such rights-of-way over the lands included in such district for stock-driving purposes as may be necessary for the convenient access by any such owner to marketing facilities or to lands not within such district owned by such person or upon which such person has stock-grazing rights. Neither this Act nor the Act of December 29, 1916 (39 Stat. 862; U. S. C., title 43, secs. 291 and following), commonly known as the 'Stock Raising Homestead Act’, shall bei construed as limiting the authority or policy of Congress or the President to include in national forests public lands of the character described in section 24 of the Act of March 3, 1891 (26 Stat. 1103; U. S. C., title 16, sec. 471), as amended, for the purposes set forth in the Act of June 4, 1897 (30 Stat. 35; U. S. C., title 16, sec. 475), or such other purposes as Congress may specify. Before grazing districts are created in any State as herein provided, a hearing shall be held in the State, after public notice thereof shall have been given, at such location convenient for the attendance of State officials, and the settlers, residents, and livestock owners of the vicinity, as may be determined by the Secretary of the Interior. No such district shall be established until the expiration of ninety days after such notice shall have been given, nor until twenty days after such hearing shall be held: Provided, however, That the publication of such notice shall have the effect of withdrawing all public lands within the exterior boundary of such proposed grazing districts from all forms of entry of settlement. Nothing in this Act shall be construed as in any way altering or restricting the right to hunt or fish within a grazing district in accordance with the laws of the United States or of any State, or as vesting in any permittee any right whatsoever to interfere with hunting or fishing within a grazing district.” 48 Stat. 1269-1270. Section 7 of the Act authorized the Secretary “...in his discretion, to examine and classify any lands within such grazing districts which are more valuable and suitable for the production of agricultural crops than native grasses and forage plants, and to open such lands to homestead entry in tracts not exceeding three hundred and twenty acres in area. Such lands shall not be subject to settlement or occupation as homesteads until after same have been classified and opened to entry after notice to the permittee by the Secretary of the Interior, and the lands shall remain a part of the grazing district until patents are issued therefor, the homesteader to be, after his entry is allowed, entitled to the possession and use thereof: Provided, That upon the application of any person qualified to make homestead entry under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract not exceeding three hundred and twenty acres in any grazing district to be classified, and such application shall entitle the applicant to a preference right Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party Mary Z. ASSEO, etc., et al., Plaintiffs, Appellees, v. PAN AMERICAN GRAIN COMPANY, INC., and Pan American Grain Manufacturing Company, Inc., Defendants, Appellants. No. 86-1119. United States Court of Appeals, First Circuit. Heard Sept. 10, 1986. Decided Nov. 10, 1986. Antonio Moreda-Toledo with whom More-da, Moreda & Arrillaga, Hato Rey, P.R., was on brief, for defendants, appellants. Michael J. Israel with whom Joseph E. Mayer, Asst. Gen. Counsel, John W. Horn-beck, Deputy Asst. Gen. Counsel, Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, and Harold J. Datz, Associate Gen. Counsel, Washington, D.C., were on brief, for plaintiffs, appellees. Before CAMPBELL, Chief Judge, ALD-RICH and COFFIN, Circuit Judges. LEVIN H. CAMPBELL, Chief Judge. Pan American Grain Company and Pan American Grain Manufacturing Company (collectively referred to as Pan American Grain), appeal from an order of the United States District Court for the District of Puerto Rico granting a temporary injunction. The injunction was requested by the Regional Director of the National Labor Relations Board pursuant to section 10(j) of the National Labor Relations Act, 29 U.S.C. §§ 151, 160(j) (1982). The district court enjoined Pan American Grain, pending the Board’s final disposition in this case, to cease and desist from its conduct in violation of the National Labor Relations Act; to reinstate four employees alleged to have been discriminatorily discharged; to recognize and bargain with the Union as the representative of Pan American Grain’s production and maintenance employees; and to post in its plant a copy of the court’s opinion. We affirm the district court’s order. Pursuant to unfair labor practice charges filed by the Congreso de Uniones Industr-iales de Puerto Rico (hereinafter “the Union”), the Regional Director issued various complaints, consolidated complaints and amended consolidated complaints against Pan American Grain, as employer, in the period between July 23, 1985 and December 12, 1985. The complaints alleged that Pan American Grain had violated section 8(a)(1), (3) and (5), 29 U.S.C. § 158(a)(1), (3), (5) (1982), of the Act by interrogating employees concerning their support for the Union; discharging employees because of their support for the Union; threatening employees with physical harm, dismissals, loss of wages and benefits and other reprisals, because of their support for the Union; threatening plant closure because of Union activity; creating the impression of surveillance; granting wage increases and promising benefits in exchange for employees’ repudiation of the Union; circulating and soliciting signatures on a petition disavowing the Union; and refusing to recognize and bargain with the Union as the majority representative of the employees. These unfair labor practices allegedly occurred before and after a union representation election was held. They supposedly continued through the beginning of hearings concerning them held by an administrative law judge of the Board. Starting on October 21,1985, these administrative hearings proceeded until suspended on October 25. In December 1985, acting under section 10(j), the Regional Director sought temporary injunctive relief against Pan American Grain. The district court held a three-day evidentiary hearing, at which it accepted into evidence transcripts of employee testimony before the AU, and also heard live testimony from other employees and from officials of Pan American Grain. The court subsequently issued its opinion and order for temporary injunctive relief to which this appeal is addressed. Section 10(j) of the Act authorizes interim injunctive relief to maintain the status quo pending the Board’s ultimate decision on the merits of the underlying unfair labor practice claims. Fuchs v. Hood Industries, 590 F.2d 395, 397 (1st Cir.1979). In the interim proceeding, the district court is not expected to decide the merits of the unfair labor practice claims, since that is the Board’s responsibility. Rather, the district court must determine whether there is reasonable cause to believe that the alleged unfair labor practices were committed. To do so, the court need only find that the Regional Director’s position is fairly supported in the evidence. Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d 953, 959 (1st Cir.1983). At the same time, as we there pointed out, the strength of that position, viz., the relative likelihood that the Board will eventually succeed on the merits, must be considered in connection with the other criteria that determine the appropriateness of injunctive relief, see infra. This court’s review is limited to whether the district court was clearly erroneous in finding reasonable cause to believe that there were unfair labor practices and whether it abused its discretion in granting injunctive relief. Union de Tronquistas de Puerto Rico v. Arlook, 586 F.2d 872, 876 (1st Cir.1978). I. THE UNFAIR LABOR PRACTICES We believe the record afforded reasonable cause for the district court to believe that the unfair labor practices occurred. Employees testified to each of the alleged unfair labor practices before either the AU or the district court. Pan American Grain asserts that their testimony furnished inadequate support for the court’s findings because the company presented affidavits from each testifying employee contradicting his own testimony. The district court, however, could reasonably disregard the affidavits. Pan American Grain’s attorney testified to sitting alone with each individual employee in a room at the employer’s office, and there drafting and notarizing the affidavits. When confronted with the affidavits, each employee testified that the only reason he had subscribed to the statements was because he felt that to refuse would result in reprisals, such as discharge, or plant closing. It is true that a district court’s function in a section 10(j) case is not to weigh the credibility of contradictory evidence, and so decide the merits. However, to determine whether the Regional Director’s position was fairly supported, the court had to decide whether the affidavits were a reason not to credit the employees’ otherwise persuasive testimony. The circumstances surrounding the making of the affidavits, and the employee-affiant’s testimony as to the coercive pressures, provided reasonable grounds for disregarding them. Pan American Grain asserts that the district court should not have accepted into evidence transcripts from the hearing before the AU, claiming that they were inadmissible hearsay. This argument is without merit. Affidavits and other hearsay materials are often received in preliminary injunction proceedings. The disposi-tive question is not their classification as hearsay but whether, weighing all the attendant factors, including the need for expedition, this type of evidence was appropriate given the character and objectives of the injunctive proceeding. Compare SEC v. Frank, 388 F.2d 486 (2d Cir.1968) with Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190, 198 (9th Cir.1953). Testimony from an administrative hearing before a labor board AU was used in Fuchs v. Hood Industries, 590 F.2d 395, 398 (1st Cir.1979). See also Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984) (for preliminary injunction trial court may consider otherwise inadmissible evidence when to do so will prevent irreparable harm). In this case the court conducted an evidentiary hearing of its own at which it heard live testimony from a number of witnesses, and it also considered the transcript of the testimony received in so much of the unfair labor practice proceedings before the AU as had so far taken place. Essentially the same issues being examined by the district court were also at issue before the AU, and appellants had the opportunity to cross-examine each witness in the hearing before the AU. Later, at the injunctive hearing, appellants could have sought to recall any of these witnesses for further examination had they wished. We believe the nature of the hearing before the AU made it entirely appropriate for the district court to review the transcript of that hearing in determining whether there was reasonable cause to believe that unfair labor practices had taken place. We conclude that the district court’s determination of reasonable cause was supported in the record and that its factual findings were not clearly erroneous. II. THE PROPRIETY OF INJUNC-TIVE RELIEF Once reasonable cause is established, this court reviews whether the district court abused its discretion in determining that the particular injunctive relief was just and proper. When determining whether injunctive relief is just and proper in a section 10(j) proceeding, the “whole panoply of discretionary issues with respect to granting preliminary relief must be addressed.” Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d at 958. In this circuit the standards for granting preliminary injunctive relief are (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction. Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981). In this case, we think the court below was entitled to conclude that, without an interim bargaining order, irreparable harm would result because of the continuing nature of Pan American Grain’s violations. Testimony before the district court showed that the employer continued its threats of discharge or plant closings even during the hearings before the AU on the previous unfair labor practices. If an employer is allowed to continue overt violations of the Act, it may in extreme cases succeed in so undermining union strength as to render ineffective any final relief that might be afforded by the Board. The District of Columbia Circuit stated in International Union of Electrical Workers v. NLRB, 426 F.2d 1243, 1249 (D.C. Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970), Employee interest in a union can wane quickly as working conditions remain apparently unaffected by the union or collective bargaining. When the company is finally ordered to bargain with the union some years later, the union may find that it represents only a small fraction of the employees. Similarly, the Second Circuit has observed, Just as a cease and desist order is ineffective as final relief ... it is, in certain cases, also insufficient as interim relief. If an employer faced with a union demand for recognition based on a card majority may engage in an extensive campaign of serious and pervasive unfair labor practices, resulting in the union’s losing an election, and is then merely enjoined from repeating those already successful violations until final Board action is taken, the Board’s adjudicatory machinery may well be rendered totally ineffective. A final Board decision ordering a new election will leave the union disadvantaged by the same unfair labor practices which caused it to lose the first election. Even if the Board finally orders bargaining, probably close to two years after the union first demanded recognition, the union’s position in the plant may have already deteriorated to such a degree that effective representation is no longer possible. Only if the district courts may issue interim bargaining orders can the union’s viability be maintained to the degree necessary to make final Board adjudication in the form of an election or a bargaining order meaningful. Seeler v. Trading Port, Inc., 517 F.2d 33, 37-38 (2d Cir.1975). Here, the seriousness of the unfair labor practices reflected in the Regional Director’s evidence was such that the district court could properly believe that, without an interim bargaining order, the Union would suffer irreparable harm. As to the reinstatement of the four employees, arguably the possibility of subsequent relief by the Board in the form of reinstatement with back pay precludes a finding of irreparable harm. Whether this is so, however, depends on the particular circumstances, and we cannot say the district court exceeded its discretion in determining, here, that subsequent reinstatement with back pay would not suffice. In addressing a similar argument, the Third Circuit said, The [district] court also noted that there was no need for a reinstatement order because the Board, if it found that the discharges were in retaliation for engaging in protected activity, could order reinstatement with back pay. That reasoning, however, misapprehends the purpose of section 10(j) relief. When the Board files an application for such relief it is not acting on behalf of individual employees, but in the public interest.... That interest is in the integrity of the collective bargaining process. If union supporters are excluded from the bargaining process pending resolution of unfair labor practice charges, the position of the designated bargaining representative will in all likelihood be substantially undermined. All members of the bargaining unit may be affected by such an erosion of union support. Furthermore, the discharge of “active and open union supporters ... risk[s] a serious adverse impact on employee interest in unionization.” Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1053 (2d Cir.1980). When the Board, faced with an employer’s resort to tactics calculated to undermine union support at a critical stage of the bargaining process, seeks section 10(j) relief, the focus of attention should not be on what relief may ultimately be granted to individual employees but on the likelihood of harm to the bargaining process in the interim. Eisenberg v. Wellington Hall Nursing Home, Inc., 651 F.2d 902, 906-07 (3d Cir.1981). While the granting of an interim bargaining order and the reinstatement of employees, are burdensome to the employer, and should not be imposed as a matter of course in all cases, we are unable to say, on this record, that the burdens to the employer equal or exceed the likely harm to the Union if this relief is not granted. The employer’s burden will only last until the Board’s final determination. The employer can condition the continued efficacy of an agreement (if indeed any agreement is reached) upon the final disposition by the Board. See Kaynard, 625 F.2d at 1054. The record also supports, as it must for an injunction to issue, a finding of a likelihood of success on the merits. Numerous employees testified to various violations by the employer such as offering money for a vote against the Union, threats to discharge employees who supported the Union, and threats to close the plant should the Union prevail. To be sure, the four employees who were discharged were prominent among those who testified. They could be biased. However, others with less apparent reason to be biased against the employer also testified to the unfair labor practices. We believe the evidence as a whole, which included much evidence of flagrant misconduct, supports a finding of a likelihood of success on the merits. This flagrancy goes far to overcome what, standing alone, in the case of some of the employees, might otherwise seem persuasive reasons for discharge. Finally, we find that the public interest will not be adversely affected by the granting of injunctive relief. To the contrary, the public has an interest in ensuring that the purposes of the Act be furthered. See Seeler v. Trading Port, Inc., 517 F.2d at 37-38. Having found that the district court’s order satisfied the usual requirements for injunctive relief, arguably our task is complete. However, since we are dealing with the extreme remedy of an interim bargaining order, we comment further on the suitability of such relief. When reviewing a Board order which, without an election having been held and won by the Union, requires an employer to bargain with the Union, this court expects the Board to have presented specific examples and precise reasons for concluding that “(1) the employer’s unfair labor practices so undermined the Union’s majority that conducting a fair election would be unlikely; (2) the employer’s unlawful conduct was likely to continue; and (3) the ordinary remedies of back pay, reinstatement, and posting of notices would be inadequate to ensure a fair election.” NLRB v. American Spring Bed Manufacturing Co., 670 F.2d 1236, 1247 (1st Cir.1982). When an interim bargaining order is sought under section 10(j), an analogous showing is needed. The Second Circuit stated the standard as follows: We hold only that when the Regional Director makes a showing, based on authorization cards, that the union at one point had a clear majority and that the employer then engaged in such egregious and coercive unfair labor practices as to make a fair election virtually impossible, the district court should issue a bargaining order under § 10(j). In such a case the election process has been rendered so meaningless by the employer, that the authorization cards are a clearly superior gauge of employee sentiment. A bargaining order then becomes a just and proper means of restoring the pre-unfair labor practices status quo and preventing further frustration of the purposes of the Act. Seeler v. Trading Port, Inc., 517 F.2d at 40. In the present case, the Board’s evidence showed there was clear majority support for the Union prior to the alleged unfair labor practices. Out of 22 eligible employees, 16 signed Union authorization cards. The Board has also presented significant evidence that the unfair labor practices were so egregious as to make a fair election virtually impossible. Employees testified to threats of personal harm, dismissals, or plant closings, and there was evidence of actual discriminatory dismissals. The Board’s evidence tended to show that a supervisor instigated a petition disavowing interest in the Union, and that employees signed the petition out of fear of reprisals. Thus the court below could conclude that prospects for a fair rerun election were slight. On the showing made, the district court did not abuse its discretion in granting an interim bargaining order. Pan American Grain argues that the district court could not properly reinstate the four employees since five or six months had passed since they were discharged. Pan American Grain points to our comments in Maram v. Universidad Interamericana, 722 F.2d at 958, criticizing a delay of four months in a similar case. However, the Maram court observed that “[a] busy administrative agency [the NLRB] cannot operate overnight. The very fact that it must exercise discretion, and that its decision is entitled to presumptive weight ... indicate that it should have time to investigate and deliberate.” Maram, 722 F.2d at 960. In the present case, the Board points out that Pan American Grain’s alleged misconduct continued over many months, resulting in the Board’s filing of several amendments to the original complaint. While we are not happy with the delay, we cannot say that the Board was so dilatory as to preclude the granting of this relief. We would close with one generalization. The Board asserts that it does not lightly institute section 10(j) proceedings, and only did so in this case after its investigation revealed a continuing pattern of violations. Well and good, but we emphasize that in any case where the preliminary relief is essentially the final relief sought, the likelihood of success should be strong. This must particularly be so in Board cases, where final decisions are often remotely distant. We would not want the Board to feel at ease after obtaining a preliminary injunction. Rather, we take a section 10(j) request to be a promise of a speedy disposition, with the risk of dissolution, or modification, by the court, on motion of the employer, if the promise is not kept. Solien v. United Steelworkers of America, 593 F.2d 82, 88 (8th Cir.1978), cert. denied, 444 U.S. 828, 100 S.Ct. 54, 62 L.Ed.2d 36 (1979); Kennedy v. San Francisco-Oakland Newspaper Guild, 430 F.2d 317 (9th Cir.), vacated as moot and remanded for dismissal, 400 U.S. 3, 91 S.Ct. 12, 27 L.Ed.2d 2 (1970). This should not be a heavy burden on the Board. If the case is clear enough to warrant a preliminary order, final disposition should normally not prove difficult. Affirmed. . It is unclear that Pan American Grain raised a timely objection to use of the transcripts. We can find nothing in the record to support their assertions that they did object. If they did not object on hearsay grounds, they waived the point. Fed.R.Evid. 103(a)(1). . In California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 1938, 26 L.Ed.2d 489 (1970), the Supreme Court recognized the trustworthiness of using prior testimony where (1) the circumstances of the prior testimony were similar to the typical trial, (2) the testimony was given under oath, and (3) the attorney for the party against whom it was used was present when the prior testimony was given and had every opportunity to cross-examine. The Court approved the use of such testimony (in the context of the confrontation clause) regardless of whether or not the witness was presently available to testify- . Pan American Grain asserts that the appropriate bargaining unit contained 32 employees, and therefore no majority support was shown. However, at the hearing before the ALJ the Board produced evidence that the disputed employees were independent contractors, who are paid by commission, and were ineligible to vote in the union representation election. Pan American Grain also argues that the union majority support was coerced. There is no evidence, however, that initial union support was anything but voluntary. There was evidence at the hearing before the AU that after the alleged unfair labor practices by the employer began, one employee tore up his union card, which he admitted he originally voluntarily signed. That employee testified that subsequently he received threats from union adherents and was under pressure to sign a new authorization card. While the existence of allegations of subsequent improper behavior by union adherents is relevant to the ultimate decision on the merits, the district court’s primary focus was whether there was initial voluntary majority support for the union, thereby making an interim bargaining order appropriate. Subsequent increases or decreases in union support, which may or may not have been caused by inappropriate behavior by either the employer or union adherents, is not relevant to the question of whether there was initial majority union support. 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_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Plaintiff-Appellee, v. Annette GONZALEZ-ACOSTA, Defendant-Appellant. No. 92-2146. United States Court of Appeals, Tenth Circuit. March 22, 1993. Don J. Svet, U.S. Atty., and Judith A. Patton, Asst. U.S. Atty., Las Cruces, NM, on the brief, for plaintiff-appellee. R. Morgan Lyman, Asst. Federal Public Defender, Las Cruces, NM, on the brief, for defendant-appellant. Before LOGAN, HOLLOWAY, and MOORE, Circuit Judges. JOHN P. MOORE, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument. Defendant Annette Gonzalez-Acosta appeals her conviction for possession with intent to distribute marijuana. She raises three questions for our review: (a) whether the district court erred in denying her motion to suppress; (b) whether the court erred in denying her motion for pretrial production of canine records; and (c) whether the court erred in denying her motion for an independent weighing of the marijuana for sentencing. Finding no error, we affirm. The trial court found and the record indicates the following circumstances. On October 31, 1991, defendant drove into a permanent border patrol station in Otero County, New Mexico. At the primary inspection area, she and the vehicle’s other occupant produced valid resident alien cards. However, because defendant avoided eye contact and appeared to be slightly nervous, U.S. Border Patrol Agent Rey-mundo H. Sanchez inquired where she was going. Defendant responded that she was traveling to Ruidoso, New Mexico, for two days. The agent asked for and received' permission to inspect the trunk of her vehicle. The trunk contained no luggage. Another Border Patrol Agent, Eligió Pena, then squatted down and looked under the vehicle. Using a mirror and flashlight, Agent Pena saw shiny bolts on the gas tank support straps. Suspecting the gas tank had been altered to conceal narcotics, he referred defendant to the secondary inspection area and obtained verbal consent to conduct a dog search of the vehicle.. After the dog alerted, defendant signed a written form consenting to a full search of the vehicle. Agents retrieved approximately 25 pounds of marijuana from the vehicle’s gas tank. On November 20, 1991, defendant was indicted for possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). She pled not guilty and filed motions for pretrial production and to suppress the evidence. The motions were denied. Defendant was tried twice. Her first trial ended in a mistrial because the jury could not reach a unanimous decision. She was retried and convicted in March 1992. I. The district court denied defendant’s motion to suppress on the ground that the border patrol agents had reasonable suspicion to conduct the undercarriage inspection and the dog search. Specifically, the court found “everything the officer did was more than reasonable, and his suspicions were justified;. there was no illegal detention and no illegal search.” On appeal, defendant contends the district court’s finding of reasonable suspicion is “clearly erroneous.” Defendant maintains because permanent border patrol stops must be immigration-related, she should have been free to leave once she produced valid documentation. Instead, she was involuntarily detained at the primary checkpoint area while Agent Pena searched the undercarriage of her vehicle. According to defendant, her detention was unlawful because the inspection “was directed toward matters unrelated to the original [immigration-related] reason for the stop” and because Agent Pena lacked reasonable suspicion. Thus, she claims the marijuana seized by the agents must be “suppressed as a fruit of her unlawful detention.” The standard of review for denial of a motion to suppress “is well established.” United States v. Benitez, 899 F.2d 995, 997 (10th Cir.1990). “[T]he trial court’s finding of fact must be accepted by this court unless clearly erroneous, with the evidence viewed in the light most favorable to the district court’s finding.” United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986) (citations omitted) (quoting United States v. Lopez, 777 F.2d 543, 548 (10th Cir.1985)). Moreover, “[i]f or where findings are not made, this court must uphold the ruling if there is any reasonable view of the evidence to support it.” United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989) (citation omitted). The ultimate determination of reasonableness under the Fourth Amendment, however, is a conclusion of law which we review de novo. United States v. Butler, 904 F.2d 1482, 1484 (10th Cir.1990) (citations omitted). “The Fourth Amendment is not a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” Espinosa, 782 F.2d at 890 (citation omitted). Consequently, “[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.” United States v. Johnson, 895 F.2d 693, 696 (10th Cir.1990) (citations omitted) (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)). Moreover, “[n]o individualized suspicion is necessary to stop, question and then selectively refer motorists to a secondary inspection checkpoint.” United States v. Sanders, 937 F.2d 1495, 1499 (10th Cir.1991) (citations omitted), cert. denied, — U.S. -, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992). Thus, the initial inquiry is whether the undercarriage inspection of defendant's vehicle amounted to a “search” within the meaning of the Fourth Amendment. The Supreme Court has held that “[w]hat a person knowingly exposes to the public ..: is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) (citations omitted). “Nor is it a search when a law enforcement officer makes visual observations from a vantage point he rightfully occupies.” United States v. Burns, 624 F.2d 95, 100 (10th Cir.) (citation omitted), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980). Thus, if an object is in plain view, “neither its observation nor its seizure would involve any invasion of privacy.” Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990) (citations omitted). Moreover, “the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (citations omitted). Likewise, an officer may “change[] [his] position” and “ben[d] down at an angle” to see what is inside a car, because “there is no reason [why an officer] should be precluded from observing ... what would be entirely visible to him as a private citizen.” Id. Applying this reasoning to the instant appeal, we conclude the undercarriage inspection of defendant’s vehicle did not constitute a “search” within the meaning of the Fourth Amendment. Consequently, we do not reach the issue of reasonable suspicion. We also reject defendant’s contention that border patrol agents must confine their activities to immigration-related matters. To the contrary, “[bjorder patrol agents are not required to ignore suspicious circumstances, even if such circumstances may not be pertinent to citizenship and immigration status.” United States v. Rubio-Rivera, 917 F.2d 1271, 1276 (10th Cir.1990) (citations omitted). Moreover, “[detention and questioning at borders based only on suspicious circumstances are approved as consistent with the accepted government policy of ensuring that ... no one is permitted to secrete contraband through the border.” Sanders, 937 F.2d at 1500. Therefore, border patrol a,gents may ask motorists to explain suspected drug activity because such questioning “bears a reasonable relationship to their unique duties.” Id. In Sanders, we noted that although a border patrol agent may question an individual about his citizenship and ask him to explain suspicious circumstances, “any further detention must be based on the individual’s consent or probable cause, or upon a valid investigative detention.” Id. at 1499 (citations omitted). Here, both border patrol agents testified defendant consented to the dog search of her vehicle. By not challenging this evidence on appeal, defendant has implicitly admitted the dog search was consensual. Thus, she cannot now contend her consent was infected by an unlawful detention. See Espinosa, 782 F.2d at 891. Moreover, “[o]nce the dog alerted the agents to the presence of narcotics, the agents had probable cause to search the car.” United States v. Pinedo-Montoya, 966 F.2d 591, 594 (10th Cir.1992). Consequently, we conclude the district court properly denied defendant’s motion to suppress. II. Before the suppression hearing, defendant filed a motion for pretrial production of the training file for the dog that sniff-searched her vehicle. Specifically, she sought “training records, veterinary records, false-positive/false-negative alert records and all other records establishing the dog’s ability to smell.” Defendant argued the dog search was suspect because the dog had been recovering from a serious injury and had false-alerted upon initial contact with her vehicle. The district court decided to proceed with the suppression hearing before determining whether the records were necessary. At the suppression hearing, Agent Pena, the dog’s handler, testified that although the dog had been injured several months earlier, the dog was certified on the day defendant’s vehicle was searched. He also stated that the dog had never false-alerted during its three years of service. Though the court ultimately denied defendant’s motion for pretrial production, it nonetheless required the government to produce the canine log for the day of seizure. On appeal, defendant contends the district court “abused its discretion” by not allowing her “to adequately cross-examine dog handler Pena about medications his dog may have taken regarding its ability to smell and false-positive alerts going to the dog’s capacity to smell.” According to defendant, the dog’s training file was discoverable because “the dog’s ability to smell to form "probable cause is much like a machine that does or does not work.” In United States v. Rogers, 921 F.2d 1089, 1094 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991), we determined that the proper standard of review for the denial of a motion filed under Fed.R.Crim.P. 17(b) was abuse of discretion. The same standard applies to the denial of defendant’s Rule 17(c) motion for pretrial production of documentary evidence. Under this standard, “we defer to the trial court’s judgment because of its first-hand ability to view the witness or evidence and assess credibility and probative value.” United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986), Therefore, we will not disturb the district court’s ruling unless we have “a definite and firm conviction” that the court “made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. Rule 17(c) of the Federal Rules of Criminal Procedure provides that “[a] subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein.” However, the rule is “not intended to provide an additional means of discovery,” but merely “to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.” Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 679, 95 L.Ed. 879 (1951) (citation omitted). Thus, to require production prior to trial, the moving party must demonstrate: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 3103-04, 41 L.Ed.2d 1039 (1974). Similarly, on appeal from the denial of a Rule 17(c) motion, the movant must show that the subpoenaed document was relevant, admissible, and specific. United States v. Arditti, 955 F.2d 331, 345 (5th Cir.) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 597, 121 L.Ed.2d 534 (1992). Defendant contends she made the requisite showing for pretrial production. We disagree. First, we do not believe the documents were relevant because the dog was certified on the day in question and because the dog properly alerted to the presence of contraband. See generally United States v. McCranie, 703 F.2d 1213, 1218 (10th Cir.) (alert by explosives-sniffing dog not formally trained to detect drugs nonetheless created reasonable suspicion that defendant’s suitcase contained contraband), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 680 (1983); United States v. Williams, 726 F.2d 661, 663-64 (10th Cir.) (concluding dog alert was valid despite dog’s somewhat anomalous behavior in detecting the presence of narcotics), cert. denied, 467 U.S. 1245, 104 S.Ct. 3523, 82 L.Ed.2d 830 (1984). Indeed, had the dog’s records indicated it had false-alerted in the past, defendant’s ability to cross-examine would not have been enhanced because there is no doubt it correctly alerted in this instance. Moreover, based on defense counsel’s extensive cross-examination of Agent Pena at the suppression hearing, we simply cannot say the defendant was precluded from either preparing for the suppression hearing or from exploring the issue of dog reliability. Thus, we affirm the district court’s denial of defendant’s motion for pretrial production because the ruling was not “arbitrary, capricious, whimsical, or manifestly unreasonable.” United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.1991) (quoting United States v. Cardenas, 864 F.2d 1528, 1530 (10th Cir.) (citation omitted), cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989)). III. Prior to sentencing, defendant filed a motion to independently weigh the marijuana seized by the border patrol agents, alleging the trial weight of 10.049 kilograms increased her base offense level from 14 to 16. Defendant claimed she was entitled to reweigh the marijuana because the length of her sentence “could be affected” by the additional 49 grams of the substance. Defendant further submitted that although she “stipulated at trial that the gross weight of the seized marijuana was 27 pounds,” • she “did not stipulate what the net weight of marijuana was to be for sentencing purposes.” The district court ultimately denied the motion, finding “the government and the defendant had stipulated as to the weight of the marijuana and [defendant showed] no cause ... why that stipulation should not be binding.” On appeal, defendant advances the same arguments contained in her original motion. In addition, she contends “[ajbsent a jury finding regarding the amount of the marijuana, the trial court should not be able to decide ori its own accord that the amount of marijuana presented before the jury was that amount at sentencing.” Thus, according to defendant, the district court “erroneously concluded that a stipulation for trial purposes was the same as a stipulation for sentencing purposes.” In United States v. Dailey, 918 F.2d 747 (8th Cir.1990), the Eighth Circuit considered the same argument under virtually identical circumstances and concluded “the [district] court may, in its discretion, rely upon stipulations between the government and the defendant in determining the facts relevant to sentencing.” Id. at 748 (citations omitted). The court further held “[a] stipulation made for trial purposes is no less binding at sentencing.” Id. (citation omitted). We adopt this reasoning and find the district court did not abuse its discretion in denying defendant’s motion to independently weigh the evidence. See United States v. Stanberry, 963 F.2d 1323, 1326 (10th Cir.1992) (citation omitted) (“It is axiomatic that the facts relevant to guilt or innocence are for a jury to decide and that the facts relevant to sentencing are for the sentencing court to decide.”). In so holding, we note that because defendant’s current sentence is within the guideline range for base offense levels 14 and 16, we cannot say she was harmed by the district court’s denial of her motion to reweigh the evidence. AFFIRMED. . Specifically, she claims the documents were both evidentiary and relevant "not only for the Suppression Hearing in chief, but also for impeachment purposes”; "[t]here was no other way ... to obtain these records” because the documents were held by the El Paso border patrol; she was unable to properly prepare for the suppression hearing without them; and her request was not a fishing trip, but a legitimate attempt to determine the dog’s reliability. . Agent Pena’s testimony on cross-examination revealed that the dog fractured its leg in January 1990. Over the next several months, the dog underwent various operations, suffered a long bout of infection, and lost its drug-sniffing certification. On the day it searched defendant’s vehicle, the dog had been recertified for only three weeks and may have been medicated. . Under U.S.S.G. § 2D1.1.(a)(3), conviction for 5-10 kilograms of marijuana leads to a base offense level of 14, while conviction for 10-20 kilograms results in a base level of 16. . The parties’ stipulated in writing that "the gross weight of the seized marijuana is 27 pounds and the net weight is 22.15 pounds” (10.047 kilograms). The stipulation was read to the jury and admitted as Government Exhibit No. 5. . Our holding is not inconsistent with United States v. Padilla, 947 F.2d 893 (10th Cir.1991). There, although we observed that "Fed. R.Crim.P. 16(a)(1)(C) [normally] would entitle defendant to an independent weighing,” we nonetheless concluded that "when defendant failed at sentencing to challenge the weight of heroin in the charged offense, he waived the right to challenge it on appeal." Id. at 895. Similarly, here defendant waived her right to challenge the amount of marijuana by stipulating to its weight at trial. Nor is our holding at odds with United States v. Puryear, 940 F.2d 602, 603-04 (10th Cir.1991), wherein we reversed the district court’s order convicting the defendant for misdemeanor possession but sentencing him for felony possession because drug quantity was an essential element of the charged offense. . Defendant has been sentenced to 21 months’ imprisonment followed by 3 years’ supervised release. The sentencing guideline range would ' be 15 to 21 months even if the marijuana weighed less than 10 kilograms, based on a criminal history category of I and a base offense level of 14. Similarly, the supervised release period for the offense would be 3 to 5 years regardless of the amount of marijuana seized. See U.S.S.G. § 5D1.2.(a). 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:
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. PENNELL et al. v. CITY OF SAN JOSE et al. No. 86-753. Argued November 10, 1987 Decided February 24, 1988 Rehnquist, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, and Stevens, JJ., joined. Scalia, J., filed an opinion concurring in part and dissenting in part, in which O’Connor, J., joined, post, p. 15. Kennedy, J., took no part in the consideration or decision of the case. Harry D. Miller argued the cause for appellants. With him on the briefs were Burch Fitzpatrick and Gary E. Rosenberg. Joan R. Gallo argued the cause for appellees. With her on the brief was George Rios. Briefs of amici curiae urging reversal were filed for the California Association of Realtors by William M. Pfeiffer; for the National Apartment Association et al. by Jon D. Smock, Wilbur H. Haines III, and Jeffrey J. Gale; for the National Association of Realtors by William D. North; for the National Multi Housing Council by Lawrence B. Simons and Michael E. Fine; for the Rent Stabilization Association of New York City, Inc., et al. by Erwin N. Griswold; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Todd Natkin. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John A. Powell, Steven R. Shapiro, Helen Hershkoff, Paul L. Hoffman, and Mark Rosenbaum; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg and Laurence Gold; for the Asian Law Alliance et al. by Brenton Rogozen; for the Center for Constitutional Rights by Frank E. Deale; for the National Housing Law Project by David B. Bryson; for the National Institute of Municipal Law Officers by William I. Thornton, Jr., Roger F. Cutler, Roy D. Bates, and William H. Taube; and for the U. S. Conference of Mayors et al. by Benna Ruth Solomon and H. Bartow Farr III. Briefs of amici curiae were filed for the city of Santa Monica et al. by Joseph Lawrence, Karl M. Manheim, Joel M. Levy, Hadassa K. Gilbert, Manuela Albuquerque, Raymond E. Ott, Mary Jo Levinger, Marc G. Hynes, Jayne W. Williams, K. Duane Lyders, Louise H. Renne, Roger T. Picquet, Steven A. Amerikaner, Mark G. Sellers, and John M. Powers; for the Competitive Enterprise Institute by Sam Kazman; and for the National Association of Home Builders et al. by Gus Bauman. Chief Justice Rehnquist delivered the opinion of the Court. This case involves a challenge to a rent control ordinance enacted by the city of San Jose, California, that allows a hearing officer to consider, among other factors, the “hardship to a tenant” when determining whether to approve a rent increase proposed by a landlord. Appellants Richard Pennell and the Tri-County Apartment House Owners Association sued in the Superior Court of Santa Clara County seeking a declaration that the ordinance, in particular the “tenant hardship” provisions, are “facially unconstitutional and therefore . . . illegal and void.” The Superior Court entered judgment on the pleadings in favor of appellants, sustaining their claim that the tenant hardship provisions violated the Takings Clause of the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment. The California Court of Appeal affirmed this judgment, 154 Cal. App. 3d 1019, 201 Cal. Rptr. 728 (1984), but the Supreme Court of California reversed, 42 Cal. 3d 365, 721 P. 2d 1111 (1986), each by a divided vote. The majority of the Supreme Court rejected appellants’ arguments under the Takings Clause and the Equal Protection and Due Process Clauses of the Fourteenth Amendment; the dissenters in that court thought that the tenant hardship provisions were a “forced subsidy imposed on the landlord” in violation of the Takings Clause. Id., at 377, 721 P. 2d, at 1119. On appellants’ appeal to this Court we postponed consideration of the question of jurisdiction, 480 U. S. 905 (1987), and now having heard oral argument we affirm the judgment of the Supreme Court of California. The city of San Jose enacted its rent control ordinance (Ordinance) in 1979 with the stated purpose of “alleviating] some of the more immediate needs created by San Jose’s housing situation. These needs include but are not limited to the prevention of excessive and unreasonable rent increases, the alleviation of undue hardships Upon individual tenants, and the assurance to landlords of a fair and reasonable return on the value of their property.” San Jose Municipal Ordinance 19696, §5701.2. At the heart of the Ordinance is a mechanism for determining the amount by which landlords subject to its provisions may increase the annual rent which they charge their tenants. A landlord is automatically entitled to raise the rent of a tenant in possession by as much as eight percent; if a tenant objects to an increase greater than eight percent, a hearing is required before a “Mediation Hearing Officer” to determine whether the landlord’s proposed increase is “reasonable under the circumstances.” The Ordinance sets forth a number of factors to be considered by the hearing officer in making this determination, including “the hardship to a tenant.” § 5703.28(c)(7). Because appellants concentrate their attack on the consideration of this factor, we set forth the relevant provision of the Ordinance in full: “5703.29. Hardship to Tenants. In the case of a rent increase or any portion thereof which exceeds the standard set in Section 5703.28(a) or (b), then with respect to such excess and whether or not to allow same to be part of the increase allowed under this Chapter, the Hearing Officer shall consider the economic and financial hardship imposed on the present tenant or tenants of the unit or units to which such increases apply. If, on balance, the Hearing Officer determines that the proposed increase constitutes an unreasonably severe financial or economic hardship on a particular tenant, he may order that the excess of the increase which is subject to consideration under subparagraph (c) of Section 5703.28, or any portion thereof, be disallowed. Any tenant whose household income and monthly housing expense meets [certain income requirements] shall be deemed to be suffering under financial and economic hardship which must be weighed in the Hearing Officer’s determination. The burden of proof in establishing any other economic hardship shall be on the tenant.” If either a tenant or a landlord is dissatisfied with the decision of the hearing officer, the Ordinance provides for binding arbitration. A landlord who attempts to charge or who receives rent in excess of the maximum rent established as provided in the Ordinance is subject to criminal and civil penalties. Before we turn to the merits of appellants’ contentions we consider the claim of appellees that appellants lack standing to challenge the constitutionality of the Ordinance. The original complaint in this action states that appellant Richard Pennell “is an owner and lessor of 109 rental units in the City of San Jose.” Appellant Tri-County Apartment House Owners Association (Association) is said to be “an unincorporated association organized for the purpose of representing the interests of the owners and lessors of real property located in the City of San Jose.” App. 2-3. The complaint also states that the real property owned by appellants is “subject to the terms of” the Ordinance. But, appellees point out, at no time did appellants allege that either Pennell or any member of the Association has “hardship tenants” who might trigger the Ordinance’s hearing process, nor did they specifically allege that they have been or will be aggrieved by the determination of a hearing officer that a certain proposed rent increase is unreasonable on the ground of tenant hardship. As appellees put it, “[a]t this point in time, it is speculative” whether any of the Association’s members will be injured in fact by the Ordinance’s tenant hardship provisions. Thus, appellees contend, appellants lack standing under either the test for individual standing, see, e. g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464, 472 (1982) (individual standing requires an “‘actual injury redressable by the court’”), or the test for associational standing, see Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 343 (1977) (an association has standing on behalf of its members only when “its members would otherwise have standing to sue in their own right”). We must keep in mind, however, that “application of the constitutional standing requirement [is not] a mechanical exercise,” Allen v. Wright, 468 U. S. 737, 751 (1984), and that when standing is challenged on the basis of the pleadings, we “accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party,” Warth v. Seldin, 422 U. S. 490, 501 (1975); see also Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 109 (1979). Here, appellants specifically alleged in their complaint that appellants’ properties are “subject to the terms of” the Ordinance, and they stated at oral argument that the Association represents “most of the residential unit owners in the city and [has] many hardship tenants,” Tr. of Oral Arg. 42; see also id., at 7; Reply Brief for Appellants 2. Accepting the truth of these statements, which appellees do not contest, it is not “unadorned speculation,” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 44 (1976), to conclude that the Ordinance will be enforced against members of the Association. The likelihood of enforcement, with the concomitant probability that a landlord’s rent will be reduced below what he or she would otherwise be able to obtain in the absence of the Ordinance, is a sufficient threat of actual injury to satisfy Art. Ill’s requirement that “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). This said, we recognize that the record in this case leaves much to be desired in terms of specificity for purposes of determining the standing of appellants to challenge this Ordinance. Undoubtedly this is at least in part a reflection of the fact that the case originated in a state court where Art. Ill’s proscription against advisory opinions may not apply. We strongly suggest that in future cases parties litigating in this Court under circumstances similar to those here take pains to supplement the record in any manner necessary to enable us to address with as much precision as possible any question of standing that may be raised. Turning now to the merits, we first address appellants’ contention that application of the Ordinance’s tenant hardship provisions violates the Fifth and Fourteenth Amendments’ prohibition against taking of private property for public use without just compensation. In essence, appellants’ claim is as follows: §5703.28 of the Ordinance establishes the seven factors that a hearing officer is to take into account in determining the reasonable rent increase. The first six of these factors are all objective, and are related either to the landlord’s costs of providing an adequate rental unit, or to the condition of the rental market. Application of these six standards results in a rent that is “reasonable” by reference to what appellants contend is the only legitimate purpose of rent control: the elimination of “excessive” rents caused by San Jose’s housing shortage. When the hearing officer then takes into account “hardship to a tenant” pursuant to § 5703.28(c)(7) and reduces the rent below the objectively “reasonable” amount established by the first six factors, this additional reduction in the rent increase constitutes a “taking.” This taking is impermissible because it does not serve the purpose of eliminating excessive rents — that objective has already been accomplished by considering the first six factors — instead, it serves only the purpose of providing assistance to “hardship tenants.” In short, appellants contend, the additional reduction of rent on grounds of hardship accomplishes a transfer of the landlord’s property to individual hardship tenants; the Ordinance forces private individuals to shoulder the “public” burden of subsidizing their poor tenants’ housing. As appellants point out, “[i]t is axiomatic that the Fifth Amendment’s just compensation provision is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 318-319 (1987) (quoting Armstrong v. United States, 364 U. S. 40, 49 (1960)). We think it would be premature to consider this contention on the present record. As things stand, there simply is no evidence that the “tenant hardship clause” has in fact ever been relied upon by a hearing officer to reduce a rent below the figure it would have been set at on the basis of the other factors set forth in the Ordinance. In addition, there is nothing in the Ordinance requiring that a hearing officer in fact reduce a proposed rent increase on grounds of tenant hardship. Section 5703.29 does make it mandatory that hardship be considered — it states that “the Hearing Officer shall consider the economic hardship imposed on the present tenant” — but it then goes on to state that if “the proposed increase constitutes an unreasonably severe financial or economic hardship ... he may order that the excess of the increase” be disallowed. §5703.29 (emphasis added). Given the “essentially ad hoc, factual inquir[y]” involved in the takings analysis, Kaiser Aetna v. United States, 444 U. S. 164, 175 (1979), we have found it particularly important in takings cases to adhere to our admonition that “the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 294-295 (1981). In Virginia Surface Mining, for example, we found that a challenge to the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U. S. C. § 1201 et seq., was “premature,” 452 U. S., at 296, n. 37, and “not ripe for judicial resolution,” id., at 297, because the property owners in that case had not identified any property that had allegedly been taken by the Act, nor had they sought administrative relief from the Act’s restrictions on surface mining. Similarly, in this case we find that the mere fact that a hearing officer is enjoined to consider hardship to the tenant in fixing a landlord’s rent, without any showing in a particular case as to the consequences of that injunction in the ultimate determination of the rent, does not present a sufficiently concrete factual setting for the adjudication of the takings claim appellants raise here. Cf. CIO v. McAdory, 325 U. S. 472, 475-476 (1945) (declining to consider the validity of a state statute when the record did not show that the statute would ever be applied to any of the petitioner’s members). Appellants also urge that the mere provision in the Ordinance that a hearing officer may consider the hardship of the tenant in finally fixing a reasonable rent renders the Ordinance “facially invalid” under the Due Process and Equal Protection Clauses, even though no landlord ever has its rent diminished by as much as one dollar because of the application of this provision. The standard for determining whether a state price-control regulation is constitutional under the Due Process Clause is well established: “Price control is ‘unconstitutional ... if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt . . . .’” Permian Basin Area Rate Cases, 390 U. S. 747, 769-770 (1968) (quoting Nebbia v. New York, 291 U. S. 502, 539 (1934)). In other contexts we have recognized that the government may intervene in the marketplace to regulate rates or prices that are artificially inflated as a result of the existence of a monopoly or near monopoly, see, e. g., FCC v. Florida Power Corp., 480 U. S. 245, 250-254 (1987) (approving limits on rates charged to cable companies for access to telephone poles); FPC v. Texaco Inc., 417 U. S. 380, 397-398 (1974) (recognizing that federal regulation of the natural gas market was in response to the threat of monopoly pricing), or a discrepancy between supply and demand in the market for a certain product, see, e. g., Nebbia v. New York, supra, at 530, 538 (allowing a minimum price for milk to offset a “flood of surplus milk”). Accordingly, appellants do not dispute that the Ordinance’s asserted purpose of “preventing] excessive and unreasonable rent increases” caused by the “growing shortage of and increasing demand for housing in the City of San Jose,” §5701.2, is a legitimate exercise of appellees’ police powers. Cf. Block v. Hirsh, 256 U. S. 135, 156 (1921) (approving rent control in Washington, D. C., on the basis of Congress’ finding that housing in the city was “monopolized”). They do argue, however, that it is “arbitrary, discriminatory, or demonstrably irrelevant,” Permian Basin Area Rate Cases, supra, at 769-770, for appellees to attempt to accomplish the additional goal of reducing the burden of housing costs on low-income tenants by requiring that “hardship to a tenant” be considered in determining the amount of excess rent increase that is “reasonable under the circumstances” pursuant to § 5703.28. As appellants put it, “[t]he objective of alleviating individual tenant hardship is . . . not a ‘policy the legislature is free to adopt’ in a rent control ordinance.” Reply Brief for Appellants 16. We reject this contention, however, because we have long recognized that a legitimate and rational goal of price or rate regulation is the protection of consumer welfare. See, e. g., Permian Basin Area Rate Cases, supra, at 770; FPC v. Hope Natural Gas Co., 320 U. S. 591, 610-612 (1944) (“The primary aim of [the Natural Gas Act] was to protect consumers against exploitation at the hands of natural gas companies”). Indeed, a primary purpose of rent control is the protection of tenants. See, e. g., Bowles v. Willingham, 321 U. S. 503, 513, n. 9 (1944) (one purpose of rent control is “to protect persons with relatively fixed and limited incomes, consumers, wage earners . . . from undue impairment of their standard of living”). Here, the Ordinance establishes a scheme in which a hearing officer considers a number of factors in determining the reasonableness of a proposed rent increase which exceeds eight percent and which exceeds the amount deemed reasonable under either § 5703.28(a) or § 5703.28(b). The first six factors of § 5703.28(c) focus on the individual landlord — the hearing officer examines the history of the premises, the landlord’s costs, and the market for comparable housing. Section 5703.28(c)(5) also allows the landlord to bring forth any other financial evidence — including presumably evidence regarding his own financial status — to be taken into account by the hearing officer. It is in only this context that the Ordinance allows tenant hardship to be considered and, under §5703.29, “balance[d]” with the other factors set out in § 5703.28(c). Within this scheme, § 5703.28(c) represents a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment. Cf. Bowles v. Willingham, supra, at 517 (considering, but rejecting, the contention that rent control must be established “landlord by landlord, as in the fashion of utility rates”). We accordingly find that the Ordinance, which so carefully considers both the individual circumstances of the landlord and the tenant before determining whether to allow an additional increase in rent over and above certain amounts that are deemed reasonable, does not on its face violate the Fourteenth Amendment’s Due Process Clause. We also find that the Ordinance does not violate the Amendment’s Equal Protection Clause. Here again, the standard is deferential; appellees need only show that the classification scheme embodied in the Ordinance is “rationally related to a legitimate state interest.” New Orleans v. Dukes, 427 U. S. 297, 303 (1976). As we stated in Vance v. Bradley, 440 U. S. 93 (1979), “we will not overturn [a statute that does not burden a suspect class or a fundamental interest] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Id., at 97. In light of our conclusion above that the Ordinance’s tenant hardship provisions are designed to serve the legitimate purpose of protecting tenants, we can hardly conclude that it is irrational for the Ordinance to treat certain landlords differently on the basis of whether or not they have hardship tenants. The Ordinance distinguishes between landlords because doing so furthers the purpose of ensuring that individual tenants do not suffer “unreasonable” hardship; it would be inconsistent to state that hardship is a legitimate factor to be considered but then hold that appellees could not tailor the Ordinance so that only legitimate hardship cases are redressed. Cf. Woods v. Cloyd W. Miller Co., 333 U. S. 138, 145 (1948) (Congress “need not control all rents or none. It can select those areas or those classes of property where the need seems the greatest”). We recognize, as appellants point out, that in general it is difficult to say that the landlord “causes” the tenant’s hardship. But this is beside the point — if a landlord does have a hardship tenant, regardless of the reason why, it is rational for appellees to take that fact into consideration under § 5703.28 of the Ordinance when establishing a rent that is “reasonable under the circumstances.” For the foregoing reasons, we hold that it is premature to consider appellants’ claim under the Takings Clause and we reject their facial challenge to the Ordinance under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The judgment of the Supreme Court of California is accordingly Affirmed. Justice Kennedy took no part in the consideration or decision of this case. In order to be consistent with the decisions below, we refer throughout this opinion to the sections of the Ordinance as originally designated. We note, however, that the San Jose Municipal Code has recently been recodified and the Ordinance now appears at Chapter 17.23 of the new Code. Under § 5703.3, the Ordinance does not apply to rent or rent increases for new rental units first rented after the Ordinance takes effect, § 5703.3 (a), to the rental of a unit that has been voluntarily vacated, § 5703.3(b)(1), or to the rental of a unit that is vacant as a result of eviction for certain specified acts, § 5703.3(b)(2). Our cases also impose two additional requirements for associational or representational standing: the interests the organization seeks to protect must be “germane to the organization’s purpose,” Hunt, 432 U. S., at 343, and “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit,” ibid. See also Automobile Workers v. Brock, 477 U. S. 274, 281-282 (1986). Both of these requirements are satisfied here. The Association was “organized for the purpose of representing the interests of the owners and lessors of real property” in San Jose in this lawsuit, App. 3, and the facial challenge that the Association makes to the Ordinance does not require the participation of individual landlords. Appellees also argue that Pennell lacks standing individually because in early 1987 he sold the properties he owned at the time the complaint in this action was filed. See Brief for Appellees 8. In a declaration submitted to the Court, Pennell admits that he sold these properties, but states that he recently repurchased and now owns one of the apartment buildings in San Jose that he formerly owned. Declaration of Richard Pennell ¶ 7. That property was and still is “subject to the Ordinance.” Id., ¶8. Because we conclude that the Association has standing and that therefore we have jurisdiction over this appeal, we find it unnecessary to decide whether Pennell’s sale and repurchase of the property affects his standing here. For this reason we also decline to address appellants’ contention that application of § 5703.28(c)(7) to reduce an otherwise reasonable rent increase on the basis of tenant hardship violates the Fourteenth Amendment’s due process and equal protection requirements. See Hodel v. Indiana, 452 U. S. 314, 335-336 (1981) (dismissing as “premature” a due process challenge to the civil penalty provision of the Surface Mining Act because “appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused them any injury”). Appellants and several amici also argue that the Ordinance’s combination of lower rents for hardship tenants and restrictions on a landlord’s power to evict a tenant amounts to a physical taking of the landlord’s property. We decline to address this contention not only because it was raised for the first time in this Court, but also because it, too, is premised on a hearing officer’s actually granting a lower rent to a hardship tenant. Appellants do not claim, as do some amici, that rent control is per se a taking. We stated in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), that we have “consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” Id., at 440 (citing, inter alia, Bowles v. Willingham, 321 U. S. 503, 517-518 (1944)). And in FCC v. Florida Poiver Corp., 480 U. S. 245 (1987), we stated that “statutes regulating the. economic relations of landlords and tenants are not per se takings.” Id., at 252. Despite amici’s urgings, we see no need to reconsider the constitutionality of rent control per se. As we noted above, see n. 5, supra, to the extent that appellants’ due process argument is based on the claim that the Ordinance forces landlords to subsidize individual tenants, that claim is premature and not presented by the facts before us. The consideration of tenant hardship also serves the additional purpose, not stated on the face of the Ordinance, of reducing the costs of dislocation that might otherwise result if landlords were to charge rents to tenants that they could not afford. Particularly during a housing shortage, the social costs of the dislocation of low-income tenants can be severe. By allowing tenant hardship to be considered under § 5703.28(c), the Ordinance enables appellees to “fine tune” their rent control to take into account the risk that a particular tenant will be forced to relocate as a result of a proposed rent increase. 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_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carlos A. SANCLEMENTE-BEJARANO, Defendant-Appellant. No. 87-5213. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 3, 1988. Decided Nov. 3, 1988. Saul M. Ferster, Los Angeles, Cal., for defendant-appellant. Dean G. Dunlavey, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Before FLETCHER, CANBY and O’SCANNLAIN, Circuit Judges. PER CURIAM: Carlos Sanclemente-Bejarano appeals his conviction after a plea of guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm. FACTS On June 9, 1987, appellant Sanclemente pled guilty to possessing approximately ten kilograms of cocaine with intent to distribute, an offense proscribed by 21 U.S.C. § 841(a)(1). At the plea hearing, the trial court engaged in a lengthy colloquy with Sanclemente. The district judge advised Sanclemente that the mandatory minimum penalty for his offense was ten years and that the maximum possible penalty was life imprisonment. The court also informed him of his constitutional rights in respect to trial. Pursuant to 21 U.S.C. § 841(b)(1)(A), a person convicted of possessing five or more kilograms of cocaine is not eligible for parole at any time during his incarceration. In addition, any sentence imposed under subsection (b)(1)(A) must include a “term of supervised release,” formerly known as a “special parole term,” of at least five years, to which the defendant will be subject following his incarceration. At his hearing, the district court did not warn Sanclemente that he would be ineligible for parole, nor did it explain to him the nature or effect of the term of supervised release. The only mention of supervised release came in a brief exchange between the court and Sanclemente’s counsel: THE COURT: Is there a special parole term? MS. BREWER: Yes, there is, your Honor. According to the new [law], there should be five years supervised release. At least five years in addition to the term of imprisonment, if there is no prior conviction. The court accepted Sanclemente’s guilty plea and on July 13, 1987, sentenced him to 15 years in prison, a five-year term of supervised release, and a $50 special assessment. Sanclemente timely appeals. DISCUSSION We have jurisdiction under 28 U.S.C. § 1291. Sanclemente’s appeal raises questions of law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). A. Eligibility for Parole Sanclemente argues that the district court, by failing to warn him of his ineligibility for parole, violated its obligation under Rule 11 of the Federal Rules of Criminal Procedure. Rule 11 governs the taking of guilty pleas in federal courts; subsection (c) sets forth the specific facts of which the court must apprise the defendant before accepting his plea. Among other things, the court is required to inform the defendant of “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....” Fed.R.Crim.P. 11(c)(1). The statute under which Sanclemente was sentenced provides that “[n]o person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.” 21 U.S.C. § 841(b)(1)(A). Sanclemente maintains that, since parole bears directly on the length of incarceration, he should have been informed of its unavailability in his case. He relies almost exclusively for this argument on Munich v. United States, 337 F.2d 356, 361 (9th Cir.1964), overruled on other grounds, Heiden v. United States, 353 F.2d 53, 55 (9th Cir.1965), in which this court held that a defendant who pleads guilty without knowing that he will not be eligible for parole “does not plead with understanding of the consequences of such a plea.” In Munich, however, we were construing the 1961 version of Rule 11. The rule was entirely rewritten in 1974, in part to reject the holding of Munich and cases holding similarly. In its notes accompanying the 1974 amendments, the Advisory Committee stated: It has been suggested that it is desirable to inform a defendant of additional consequences which might follow from his plea of guilty. Durant v. United States [410 F.2d 689 (1st Cir.1969) ] held that a defendant must be informed of his ineligibility for parole. Trujillo v. United States [377 F.2d 266 (5th Cir.1967)] held that advice about eligibility for parole is not required.... Under the rule the judge is not required to inform a defendant about these matters, though a judge is free to do so if he feels a consequence of a plea of guilty in a particular case is likely to be of real significance to the defendant. 18 U.S.C.A. Rule 11 at 348 (citations omitted) (emphasis added). This court has not yet had occasion to apply the amended version of Rule 11 to a plea involving parole ineligibility. We have noted in passing the effect of the amendments. In a case involving the propriety of a state plea proceeding, we recognized that the 1974 amendments had effectively overruled Munich. “One reason for the change was to eliminate the requirement that an accused be advised of parole eligibility.” Wayne v. Raines, 690 F.2d 685, 688 n. 3 (9th Cir.1982), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983); see Bunker v. Wise, 550 F.2d 1155, 1158 (9th Cir.1977) (defendant “need not be advised of all conceivable consequences such as when he may be considered for parole”). The Supreme Court has strongly suggested that Rule 11, as amended, does not require a court to warn a defendant of parole consequences. We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty pleas in the federal courts. See Fed.Rule Crim.Proc. 11(c); Advisory Committee’s Notes on 1974 Amendment.... Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985). In addition, every other circuit that has addressed the question has interpreted new Rule 11 consistently with the Advisory Committee Notes. Johnson v. United States, 650 F.2d 1, 4 (1st Cir.1981); United States v. Garcia, 636 F.2d 122, 123 (5th Cir.1981) (per curiam); Hunter v. Fogg, 616 F.2d 55, 61 (2d Cir.1980). The observations of the Supreme Court and the Advisory Committee, and the holdings of other circuit courts leave little doubt as to the effect of the 1974 amendment. Accordingly, we hold that Rule 11 does not require the trial court to notify a defendant of parole eligibility before accepting his guilty plea. B. Term of Supervised Release Sanclemente also contends that the district court erred by failing to explain the nature and effect of the term of supervised release. Rule 11(c)(1) requires the trial court to advise the defendant of “the effect of any special parole term.” Fed.R.Crim.P. 11(c)(1). 21 U.S.C. § 841(b)(1)(A), which used to require a “special parole term,” now requires that any sentence imposed under its authority also “impose a term of supervised release of at least 5 years in addition to such term of imprisonment....” A term of supervised release under section 841(b) is different from traditional parole. It is cumulative to any prison term imposed and thus expands the maximum possible sentence. Moreover, “[i]f [supervised release] is revoked and the defendant is returned to prison, he must serve any of his remaining sentence plus the entire term of his [supervised release] without credit for any time served on [release] prior to revocation.” United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987). Pursuant to 18 U.S.C. § 3583(e)(2), a supervised release term may also be extended, potentially to a life term, at any time before it expires. Because supervised release may increase the length of the ultimate sentence, this court has long held that it must be explained to a defendant before his guilty plea is accepted. Sharon, 812 F.2d at 1234; United States v. Del Prete, 567 F.2d 928, 929 (9th Cir.1978) (per curiam); Bunker, 550 F.2d at 1156-57. Rule 11(c)(1) was amended in 1982 expressly to require such an explanation. The Government argues that since Sanclemente was not sentenced to a special parole term, the provision of subsection (c) does not apply to him. This argument is baseless. Until 1986, section 841(b) required that persons sentenced be subject to a “special parole term.” As the Government discusses in its brief, section 841(b) was amended on October 27, 1986 by the Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207. The words “term of supervised release” were substituted for “special parole term” everywhere in the statute, including the provision under which Sanclemente pleaded guilty. Nothing in the statute, the legislative history, or the arguments of counsel suggests that a term of supervised release differs in its impact from a special parole term. Indeed, the district court and Sanclemente’s counsel used the terms interchangeably. The Government further contends that even if Rule 11 requires an explanation of a term of supervised release, the court complied with the rule in this ease. This claim, too, must fail. Rule 11 requires that the court “address the defendant ... and inform the defendant of, and determine that the defendant understands ... the effect of any special parole term.” Fed.R.Crim.P. 11(c) (emphasis added). Here, the only reference to the term of supervised release was in the court’s question to counsel as to whether there was a special parole term, and her affirmative response. The court did not inform Sancle-mente of the provision, nor did it ask him if he understood the meaning of supervised release or its effect. The court therefore violated the requirement of Rule 11. Notwithstanding the violation, however, we must affirm if we conclude that the error was harmless. Rule 11(h) expressly states that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” Once again, the notes of the Advisory Committee are instructive. The Committee offered as illustrative of a harmless violation the following example: “where the judge’s compliance with [subsection (c)(1)] was erroneous in part in that the judge understated the maximum penalty somewhat, but the penalty actually imposed did not exceed that indicated in the warnings.” 18 U.S.C.A. Rule 11 at 363 (Notes of Advisory Committee to 1983 Amendment). In short, the Notes state, an error is harmless “where it appear[s] the nature and extent of the deviation from Rule 11 [is] such that it could not have had any impact on the defendant's decision to plead or the fairness in now holding him to his plea.” Id. at 361. Our analysis of harmless error under Rule 11 has generally turned on whether the defendant knew before pleading guilty that he could be sentenced to a term as long as the one he eventually received. In United States v. Rivera-Ramirez, 715 F.2d 453 (9th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2657, 81 L.Ed.2d 364 (1984), the trial court failed to warn the defendant of the minimum possible special parole term, but did advise him that the potential maximum special term was life. He was subsequently sentenced to a life term of special parole to follow his term of incarceration. Under these circumstances, this court concluded that “no possible prejudice could have resulted from this technical error.” Id. at 458. In this case, Sanclemente was advised by the court, and said he understood, that the maximum possible sentence for his offense was life imprisonment. The sentence he received was 15 years in prison and a five-year term of supervised release. Under Rivera-Ramirez, no prejudice resulted to him from the omission, and the court’s error was therefore harmless. C. Excessive Sentence Sanclemente further claims his sentence was excessive, which he seeks to demonstrate by comparing it to: (1) what he would receive today if he were being sentenced under the new guidelines; and (2) sentences for other federal crimes, notably unarmed bank robbery. These comparisons are irrelevant. The Sentencing Reform Act of 1984 “does not apply to conduct committed prior to November 1, 1987.” United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987). Sentences imposed before the Act took effect, so long as they were authorized by statute, are not reversible for length alone absent a violation of the eighth amendment. Since Sanclemente has not made a constitutional attack on his sentence, this claim is meritless. D. Ineffective Assistance Lurking in Sanclemente’s argument is an allegation of ineffective assistance of counsel. On May 2, 1988, Sanclemente stated in a declaration: At the time my plea was entered, I was never advised by either my appointed attorney or by the court that the charge I was pleading guilty to carried a sentence during service of which I would not be eligible for parole.... In fact, my attorney told me that I would be out in 60 months if I pled guilty and came to prison and did not get in trouble.... Had I been aware of the ineligibility for parole and of the nature of the five year supervised release at the time I pled guilty ... I would not have done so. See Reply Brief at 7. The Supreme Court has left open the possibility that the erroneous advice of counsel as to parole eligibility could amount to ineffective assistance in a guilty plea. Hill, 474 U.S. at 66-57, 106 S.Ct. at 369-370. To make out such a claim, however, the defendant must show prejudice: he must demonstrate that, correctly informed, he would have pleaded not guilty. Id. at 59, 106 S.Ct. at 370. A prejudicial effect on the defendant’s plea decision provided grounds for reversal in Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir.1986), cert. denied, - U.S. -, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). Because it appeared from the record that knowledge of the special parole term would have altered Carter’s plea, we held that the failure to inform him of it was not harmless. Carter, 806 F.2d at 1377. But claims of ineffective assistance raise factual questions best resolved in a habeas corpus proceeding, not on direct appeal. United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988). In Carter, for instance, which involved a habeas corpus petition, we had the benefit on appeal of a fact-finding hearing in the district court. Collateral attack is preferable because it permits the defendant to make a record as to what counsel said, whether the defendant in fact was unaware of his ineligibility for parole and the effects of supervised release, and what, if any, prejudice resulted. See Pope, 841 F.2d at 958. If Sanclemente wishes to assert an ineffective assistance claim, he should do so by means of a § 2255 petition. AFFIRMED. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_petitioner	029	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. EUBANKS v. LOUISIANA. No. 550. Argued April 30-May 1, 1958. Decided May 26, 1958. Herbert J. Gar on argued the cause for petitioner. With him on the brief was Leopold Stahl. Michael E. Culligan, Assistant Attorney General of Louisiana, argued the cause for respondent. With him on the brief were Jack P. F. Gremillion, Attorney General, and Leon D. Hubert, Jr. William P. Schuler filed an appearance for respondent. Mr. Justice Black delivered the opinion of the Court. In an unbroken line of cases stretching back almost 80 years this Court has held that a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been excluded because of their race. Our only concern here is with the application of this established principle to the facts disclosed by the record now before us. The petitioner, a young Negro, was indicted by an all-white grand jury in the Parish of Orleans, Louisiana, for murder of a white woman. He moved to quash the indictment on the ground that Negroes had been systematically excluded from grand juries in the parish, including the grand jury which returned the indictment against him. After a hearing, his motion was overruled, and he was tried, convicted and sentenced to death. The Louisiana Supreme Court affirmed, holding that the record disclosed no discriminatory exclusion of Negroes from his grand jury, 232 La. 289, 94 So. 2d 262. We granted certiorari, 355 U. S. 812. The method by which grand juries are selected in the parish is not controverted. A jury commission is required to select, “impartially, from the citizens of the Parish of Orleans having the qualifications requisite to register as voters, the names of not less than seven hundred and fifty persons competent ... to serve as jurors.” Twice each year the Commissioners draw the names of 75 persons from this group. The list of 75 is then submitted to one of the six judges of the local criminal court who, in rotation, choose a new grand jury of 12 every six months. Obviously the judges have broad discretion in selecting from the list provided by the Commission. State v. Dorsey, 207 La. 928, 22 So. 2d 273, Several of them interview a substantial number of prospective jurors before making their choice. Others, including the judge who chose the jury that indicted petitioner, testified that they usually selected on the basis of personal knowledge or reputation in the community. Petitioner does not challenge this system of choosing grand jurors, as such, but he does contend that it has been administered by the local judges so that members of the Negro race have been systematically excluded from grand jury service. Although Negroes comprise about one-third of the population of the parish, the uncontradicted testimony of various witnesses established that only one Negro had been picked for grand jury duty within memory. And this lone exception apparently resulted from the mistaken impression that the juror was white. From 1936, when the Commission first began to include Negroes in the pool of potential jurors, until 1954, when petitioner was indicted, 36 grand juries were selected in the parish. Six or more Negroes were included in each list submitted to the local judges. Yet out of the 432 jurors selected only the single Negro was chosen. Undisputed testimony also proved that a substantial number of the large Negro population in the parish were educated, registered to vote and possessed the qualifications required for jury service, all of which is emphasized by the fact that since 1936 the Commission has regularly selected Negroes for the grand jury panel. Indeed, Negroes have served on the federal grand jury in the parish for many years. In Patton v. Mississippi, 332 U. S. 463, 469, this Court declared, in a unanimous opinion, that “When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.” This is essentially the situation here. True, the judges now serving on the local court testified generally that they had not discriminated against Negroes in choosing grand juries, and had only tried to pick the best available jurors. But as Chief Justice Hughes said for the Court in Norris v. Alabama, 294 U. S. 587, 598, “If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the [Equal Protection Clause] — adopted with special reference to their protection — would be but a vain and illusory requirement.” Compare Reece v. Georgia, 350 U. S. 85, 88; Hernandez v. Texas, 347 U. S. 475, 481. This is particularly true here where several of the parish judges apparently have never even interviewed a Negro in selecting grand jurors. We are reluctantly forced to conclude that the uniform and long-continued exclusion of Negroes from grand juries shown by this record cannot be attributed to chance, to accident, or to the fact that no sufficiently qualified Negroes have ever been included in the lists submitted to the various local judges. It seems clear to us that Negroes have been consistently barred from jury service because of their race. It may well be, as one of the parish judges recently stated, that “the selection of grand juries in this community throughout the years has been controlled by a tradition and the general thinking of the community as a whole is under the influence of that tradition.” But local tradition cannot justify failure to comply with the constitutional mandate requiring equal protection of the laws. “A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for [the State] may indict and try him again by the procedure which conforms to constitutional requirements. But no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty.” Hill v. Texas, 316 U. S. 400, 406. The judgment of the Louisiana Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Strauder v. West Virginia, 100 U. S. 303; Neal v. Delaware, 103 U. S. 370; Gibson v. Mississippi, 162 U. S. 565; Carter v. Texas, 177 U. S. 442; Rogers v. Alabama, 192 U. S. 226; Martin v. Texas, 200 U. S. 316; Norris v. Alabama, 294 U. S. 587; Hale v. Kentucky, 303 U. S. 613; Pierre v. Louisiana, 306 U. S. 354; Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400; Akins v. Texas, 325 U. S. 398; Patton v. Mississippi, 332 U. S. 463; Cassell v. Texas, 339 U. S. 282; Hernandez v. Texas, 347 U. S. 475; Reece v. Georgia, 350 U. S. 85. La. Rev. Stat., 1950, Tit. 15, § 194. Id., § 196. Louisiana v. Dowels, Crim. Dist. Ct., No. 139-324, Oct. 1952 (unreported opinion). In that case the trial judge quashed an indictment because Negroes had been systematically and intentionally excluded from parish grand juries: “Our situation in Orleans seems to be particularly vulnerable to the theory of the United States Supreme Court 'that chance and accident alone can hardly explain the continuous omission of negroes from grand juries over a long period of time’ because we have five and in the last four years, six courts, selecting grand juries and the record shows that notwithstanding the number of courts that select grand juries, and regardless of which court selects a grand jury, or when that court selects a grand jury, or how that court selects a grand jury, or how often one court or all courts have selected a grand jury, or over what period of time any court or all courts continue to select grand juries, the omission of negroes is consistent, constant and the same. “While this court is conscious of its fallibility, it is firm in its opinion that this record in the Supreme Court of Louisiana or of the United States, would support no other ruling except a ruling quashing the indictment herein because of intentional and systematic exclusion of negroes from grand juries in Orleans Parish because of race and color and in violation pf the Fourteenth Amendment, inclusive of the grand jury that returned the indictment in this case, because that grand jury is not differentiated from the pattern of jury selection that consistently eliminated colored persons from grand juries." So far as appears this is the only instance in the parish where an indictment has been annulled because of racial discrimination. For example in Pierre v. Louisiana, 306 U. S. 354, a Negro’s conviction was reversed because members of his race had been dis-criminatorily excluded from the grand jury which indicted him. On remand another grand jury, this time composed in part of Negroes, was impaneled and returned a new indictment. The defendant was then tried and convicted by a petit jury which included a Negro. See State v. Pierre, 198 La. 619, 3 So. 2d 895. Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_numresp	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. AMERICAN LUMBER CORPORATION, Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION. No. 89-1340. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(b) Sept. 6, 1989. Sept. 22, 1989. Harold E. Kohn and Marguerite R. Goodman, Kohn, Savett, Klein & Graf, P.C., Philadelphia, Pa., for appellant. Michael J. Mangan and Ronald P. Schiller, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee. Before MANSMANN, NYGAARD and ALDISERT, Circuit Judges. OPINION OF THE COURT MANSMANN, Circuit Judge. In this contract dispute, resolved by the district court’s grant of summary judgment to National Railroad Passenger Corporation (AMTRAK), the appellant American Lumber Corporation urges us to reverse the district court’s grant of summary judgment on the basis that the release signed by American Lumber’s assignor did not contemplate the current breach of contract action. Additionally, American Lumber urges us to reverse the district court’s denial of American Lumber’s motion to compel the production of information sought through a Freedom of Information Act request. We hold that the district court did not err in granting summary judgment in favor of AMTRAK on the basis of the release signed by American Lumber’s assignor. Furthermore, we conclude that, under the facts presented here, information provided by AMTRAK in response to a FOIA request is not subject to Rule 26 discovery. I. American Lumber Corporation is a wholesale distributor of building materials, including railroad ties and switch timbers. AMTRAK purchased ties and timbers in connection with a federally-funded improvement program administered by the Federal Railroad Administration. We are here concerned with five written contracts in which Roscoe Murphy Jr., Inc. (Murphy) agreed to sell a specific number of ties to AMTRAK for a set price. Murphy was awarded the contract under AMTRAK’s Minority Business Enterprise (MBE) program. Later AMTRAK learned that Murphy was engaged in a joint venture with American Lumber. Murphy delivered ties to AMTRAK, which AMTRAK accepted, and invoiced AMTRAK at the contract price. All but one of the purchase orders contained a price revision clause which permitted the contract price to be adjusted only on the basis of changes in labor and material costs. In addition, the purchase orders contained an express prohibition on the modification of the contract except in writing signed by the contracting officer. AMTRAK paid over 100 invoices submitted by Murphy at the contract price. Murphy then told AMTRAK’s Purchasing Department that his costs had increased and requested escalation pursuant to the price revision clause. Because Murphy complained of a cash flow problem, he convinced the AMTRAK personnel to pay his invoices at the escalated prices, while he obtained the necessary supporting documentation from the lumber mills. This scheme came to a halt, however, when the Accounts Payable Department refused to pay subsequent invoices because the submitted prices did not reflect the purchase order prices. In 1978 and 1979, Murphy filed civil rights complaints against AMTRAK in the United States District Court for the Eastern District of Pennsylvania based on claims of racial discrimination in regard to AMTRAK’s methods of awarding contracts. On June 3, 1981, Murphy signed a release which was the result of a settlement between Murphy and AMTRAK in which Murphy agreed to withdraw all claims against AMTRAK in return for consideration of $36,500. In September, 1983, American Lumber filed a complaint in the Court of Common Pleas of Philadelphia County against AMTRAK claiming to be Murphy’s assignee and third-party beneficiary of the Murphy-AMTRAK contracts. AMTRAK removed the action to the United States District Court for the Eastern District of Pennsylvania on January 1, 1986. On June 24, 1986, American Lumber filed for relief in United States Bankruptcy Court for the Eastern District of Pennsylvania. With the district court’s approval, AMTRAK filed a counterclaim against American Lumber alleging that its overpayment to Murphy occurred as a result of fraud, breach of contract, unjust enrichment and violation of the Racketeer Influenced Corrupt Organization (RICO) statute, 18 U.S. C.A. § 961 et seq. (West 1984). During discovery, the district court granted numerous extensions to both parties — but more particularly to American Lumber — to file responses and amend pleadings. Additionally, the court extended the discovery deadline three times at American Lumber’s request. After the district court refused to grant the fourth extension, American Lumber issued a Freedom of Information Act (FOIA) request to AMTRAK. When AMTRAK submitted a list of documents it felt were exempt from FOIA disclosure, American Lumber filed a motion for sanctions on the ground that AMTRAK was intentionally withholding discovery material. The district court denied American Lumber’s motion for sanctions. AMTRAK moved for summary judgment on grounds that (1) American Lumber’s claims were barred by a release executed by its assignor, Murphy, on June 3, 1981, and (2) American Lumber’s claims were barred by Clause 48 of the purchase orders which prohibited oral modification. The district court granted summary judgment for AMTRAK and American Lumber moved for reconsideration. American Lumber also moved to compel the production of documents by AMTRAK and to dismiss AMTRAK’s counterclaim against American Lumber. The district court denied these motions. With respect to AMTRAK’s counterclaim, the district court stayed all proceedings on the counterclaim without prejudice to AMTRAK seeking relief from the stay in bankruptcy court. This resulted in the entry of a final judgment. American Lumber appeals from the denial of its motions and the granting of the motion for summary judgment to AMTRAK. Our review of the district court’s grant or denial of a motion for summary judgment is plenary. We must determine whether there exists a genuine issue of material fact or whether the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Review of the district court’s decision concerning discovery motions, however, is limited to a determination of whether the district court abused its discretion. Consequently, it is American Lumber’s burden as appellants to demonstrate that the district court’s failure to compel AMTRAK to produce the documents deprived American Lumber of critical evidence or otherwise resulted in fundamental unfairness. Wisniewski v.. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir.1987). II. American Lumber’s first contention is that the 1981 release of Murphy’s racial discrimination suit against AMTRAK does not bar American Lumber’s contract suit. American Lumber argues that the release was intended to bar only Murphy’s discrimination claims and does not apply to the contract claims. Conversely, AMTRAK contends the 1981 settlement was in the form of a general release which released all of Murphy’s claims: those currently being asserted as well as those which could be asserted by Murphy. Since American Lumber’s claims are those assigned to it by Murphy, AMTRAK argues, the claims which could have been asserted by Murphy were released by the 1981 settlement. We must examine the language of the release to determine whether it is limited to a release of the racial discrimination claims, as American Lumber contends, or whether it is a general release of all claims, as AMTRAK contends. The 1981 release states in pertinent part: THIS IS A RELEASE * * * * * % Roscoe Murphy, Jr. and Roscoe Murphy, Jr., Inc., ... do remise, release, quitclaim and forever discharge NATIONAL RAILROAD PASSENGER CORPORATION, its officers, directors, employees, representatives, agents predecessors, successors and assigns, from any and all manner of claims, actions, causes of action, damages, costs, expenses and compensation whatsoever which ROSCOE MURPHY, JR. and ROSCOE MURPHY, JR., INC., or either of them, asserted or could have asserted against NATIONAL RAILROAD PASSENGER CORPORATION ... in the legal actions captioned ROSCOE MURPHY JR., and ROSCOE MURPHY, JR. INC., v. NATIONAL RAILROAD CORPORATION, Nos. 78-4149 and 79-3766, pending in the United States District Court for the Eastern District of Pennsylvania, which actions are to be dismissed with prejudice. [T]his release shall be complete and shall not be subject to any claim of mistake of fact and that it expresses a FULL AND COMPLETE STATEMENT of liability claimed and denied and ... is intended to avoid litigation and to be final. ROSCOE MURPHY JR. and ROSCOE MURPHY, JR., INC. further agree ... that there is absolutely no agreement or reservation not clearly expressed herein, that the sum of money stated herein is all that both are ever to receive and that the execution hereof is with full knowledge that it covers all possible claims. Appendix at 166 (emphasis added). The express language clearly states that Murphy released all claims which he asserted or could have asserted against AMTRAK in the lawsuits. Thus, we must determine whether the contract claims asserted by American Lumber could have been asserted by Murphy. Initially, we note that the contract claims pressed here by American Lumber had fully ripened at the time Murphy executed the release. American Lumber’s complaint alleges, inter alia, that AMTRAK accepted lumber products (ties) from American Lumber during the period July, 1978 through January, 1981 and continues to use $750,-000 worth for which Murphy was not paid. With respect to those products, the record discloses that by letters dated June 23, September 9, and October 9, 1980 AMTRAK denied payment of the invoices submitted by Murphy because Murphy was behind in his deliveries and because the invoices did not reflect the contract purchase order price. Murphy was specifically told that “until such time as the contract is officially modified to reflect any price revisions, our Accounts Payable Department will not honor and, in fact, will return any invoice wherein the invoice price does not match the subject purchase order price.” Appendix at 141. Clearly, Murphy was fully aware by October, 1980, that AMTRAK was challenging his invoice submissions and Murphy could have brought a claim for breach of contract at that time. The parties agree that Pennsylvania substantive law of contract interpretation applies to the terms of the release, while federal procedural law applies to the procedures involved in bringing and maintaining Murphy’s lawsuit in federal court. We turn here to federal procedural law and Murphy’s federal lawsuit. Under the Federal Rules of Civil Procedure, there was no procedural bar which would have prohibited Murphy from including the contract claims in his discrimination suit against AMTRAK. The liberal amendment of pleadings permitted by Fed.R.Civ.P. 15 would have allowed Murphy to amend his complaint to include the ripened contract claims. Following this policy of liberal amendment, we have permitted the amendment of complaints even years after the filing of the original lawsuit. See, e.g., Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.1984) (delay alone is an insufficient reason to deny amendment). The “touchstone is whether the non-moving party will be prejudiced if the amendment is allowed.” Howze, 750 F.2d at 1212. American Lumber does not allege — nor is there any evidence in the record — AMTRAK would have been prejudiced by Murphy amending his discrimination suit to include the contract claims of which both parties were fully cognizant at the time of the release. Moreover, Rule 18 of the Federal Rules of Civil Procedure permits a party to join as many legal, equitable or even maritime claims as the party has against the opposing party. These claims can be independent or alternate claims to the original complaint. As AMTRAK notes, the parties to both the discrimination suit and the contract dispute are the same, the witnesses are the same and many of the underlying facts of both cases are the same. Clearly, from a standpoint of judicial economy, a joinder of the two actions would have been more convenient for both parties. We conclude that the present action could have been brought by Murphy prior to the release of his claims on June 3, 1981. American Lumber asks us to distinguish between the release here and the release upheld by us in Three Rivers Motor Co. v. Ford Motor Co., 522 F.2d 885 (3d Cir.1975) because the document here does not contain the language “general release” as in Three Rivers. Without the presence of the language, American Lumber contends, the only claims Murphy intended to release were the racial discrimination claims he asserted or could have asserted. We disagree with this narrow reading of Three Rivers which more properly turned on the general language of the document rather than on the title of it. Three Rivers involved an anti-trust suit brought by Three Rivers Motors, a franchisee, against the Ford Motor Corporation. Several years prior to the suit at bar, Three Rivers complained that because another local competitor franchisee, Triangle Motors, operated in the same area, Three Rivers had suffered considerable operating losses. The president of Three Rivers began negotiations to resign the franchise with Ford, but did not wish to sacrifice the loss of the corporate investment in parts and accessories. Three Rivers succeeded in negotiating a settlement with Ford in which Ford agreed to buy Three Rivers’ inventory in return for the execution of a general release. Three Rivers, 522 F.2d 887. Three Rivers would then move to another location which was not in direct competition with another Ford franchise. A few years later, Three Rivers brought an anti-trust suit alleging that Ford had violated anti-trust law by entering into a price fixing arrangement to enable fleet customers to purchase their new vehicles from Triangle Motors, Three River’s old competitor. The question before us was whether the general release was broad enough to encompass the antitrust claims, thereby barring the action against Ford. 522 F.2d at 888. We concluded that “[ujnless the comprehensive language releasing all types of claims is to be read as much ado about nothing, the release must cover more than those claims arising from Ford’s repurchase of Three Rivers’ inventory.” 522 F.2d at 897. “The only reasonable conclusion is that the release was intended as a general settlement of accounts.” Id. Returning to the release at issue here, we find the same general language present that existed in the Three Rivers’ release. Of significance is the language in the second paragraph which provides that “the sum of money stated herein is all that both [Murphy and Murphy, Inc.] are ever to receive and that the execution hereof is with full knowledge that it covers all possible claims.” Unless we are to disregard the plain language of the release, we must conclude that the parties to the agreement intended that the release was to cover all claims Murphy had asserted against AMTRAK or could have asserted. Moreover, if Murphy himself had attempted to bring an action for breach of contract against AMTRAK after the June 3, 1981 release was signed, his action would have been barred. Since American Lumber, as Murphy’s assignee, can possess no greater rights than its assignor, its action is also barred. General Electric Credit Corporation v. Security Bank, 244 A.2d 920, 923 (D.C.App.1968) (“an assignee of a chose of action takes it subject to all defenses, including any valid set-off based on facts existing at the time of the assignment”). American Lumber also argues that AMTRAK waived the statute of frauds provision (Clause 48) in the contract which prohibited oral modification of the contract when AMTRAK paid some of the invoices Murphy had submitted before protesting about his failure to follow the procedure for price revision. Because we have determined that the district court properly held that Murphy’s release of claims against AMTRAK bars American Lumber’s lawsuit, we have no need to decide this issue. III. American Lumber’s final argument is that the district court erred by denying American Lumber’s motion to compel the production of documents discovered in response to American Lumber’s Freedom of Information Act request. We note at the outset that the Supreme Court has generally looked with disfavor upon parties that have tried to use the FOIA to circumvent the discovery rules. A party’s contention that it can “obtain through the FOIA material that is normally privileged would create an anomaly in that the FOIA could be used to supplement civil discovery. We have consistently rejected such a construction of the FOIA.” United States v. Weber Aircraft Corp., 465 U.S. 792, 801, 104 S.Ct. 1488, 1493, 79 L.Ed.2d 814 (1984). See also Baldrige v. Shapiro, 455 U.S. 345, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (disclosure of exempt information by way of civil discovery would undermine the purpose of confidentiality envisioned by Congress); and, National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (the primary purpose of the FOIA was not to benefit private litigants or to serve as a substitute for discovery). The district court did not merely accept AMTRAK’s statement that the records were exempt and therefore, not applicable to the lawsuit. The district court carefully scrutinized the documents in camera before determining that the information contained therein would not change AMTRAK’s responses to interrogatories. Consequently, the district court denied American’s motion on the merits, rather than on the basis of policy reasons. We cannot say that the district court abused its discretion by denying American’s motion in light of that determination. IV. We conclude that the district court did not err by granting summary judgment for AMTRAK on the basis that American Lumber’s assignor had released all claims against AMTRAK. Nor did the district court abuse its discretion by denying American Lumber’s motion for reconsideration or its motion to compel production. For the above reasons, we will affirm the judgment of the district court granting summary judgment for AMTRAK. . Through the discovery process in this lawsuit, AMTRAK learned that Murphy had been paid $1,316,100 in excess of the original contract prices hut his actual cost increase had only been $364,941 leaving a balance due AMTRAK of $951,159. . The operative portion of the Ford release stated: of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, ... controversies, agreements, promises, variances, trespasses, damages, judgments, ... whatsoever in law, in admiralty or in equity, which against Ford, ... ever had, now have or which they or any of them hereafter can, shall or may have.... Three Rivers, 522 F.2d at 895. . We cite to a District of Columbia case because the parties agree that District of Columbia law applies to the assignment of Murphy’s accounts receivable to American Lumber since the contract was created in the District of Columbia. . In addition, American Lumber appeals from the district court’s denial of America Lumber’s motion to modify the order granting summary judgment to AMTRAK on the grounds that the price revision clauses in the contracts at issue were governed by market costs rather than the supplier's actual costs. Since we have already concluded that the district court properly determined that American Lumber’s claim is barred by the release, we do not need to address this issue. American Lumber also appeals from the district court’s denial of its motion for reconsideration on the basis of newly discovered evidence. This argument is baseless in light of the district court’s decision which denied the motion on the merits because the evidence submitted by American was not "newly discovered”. We will not disturb the district court’s determination absent an abuse of discretion, which certainly did not occur here. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_constit	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Jose Rudolfo ALVARADO GUEVARA, et al., Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants-Appellees. No. 89-2487. United States Court of Appeals, Fifth Circuit. June 5, 1990. Terry E. Allbritton, David Gelfand, Tulane Law School Appellate Advocacy Clinic, New Orleans, La., Richard R. Renner, Southeastern Ohio Legal Services, New Philadelphia, Ohio, for plaintiffs-appellants. David Ayala, Atty., I.N.S., Litigation Service, Jack Shepherd, Harlingen, Tex., Henry K. Oncken, U.S. Atty., Jeanette Mercado, Asst., Brownsville, Tex., for defendants-appellees. Before REAVLEY, JONES and DUHÉ, Circuit Judges. PER CURIAM: Upon careful review of the record, briefs and oral arguments in this cause, we find that the judgment of the district court, Ricardo H. Hinojosa, J., is correct. With the exception of additional footnotes provided by our court, we adopt the judgment and persuasive reasoning of the district court to the extent published below as Appendix A. AFFIRMED. APPENDIX A Plaintiffs Jose Rudolfo Alvarado Guevara, Luis Miguel Dominquez Mendoza, Eli-dió Escobar, Jose Dennis Flores Medrano, Juan Francisco Garcia Perez, Carlos Eduardo Gonzalez Cruz, Virgilio Tapia Rodas, Henry Vasquez Cruz, Encarnación Calderon Valdizon, Carlos Humberto Campos Ortiz, Hector Najarco Alas, Cristobal Osorio Machado, Edwin Perez Valle, Jose Daniel Sullivan Lopez, Jose Vergara Hernandez, and Luis Arturo Zelaya Martinez (hereinafter “Plaintiffs”) have brought suit against Defendants Immigration and Naturalization Service (hereinafter “INS"), Port Isabel Service Processing Center (hereinafter “PISPC”), John Luvender, Individually and as Director of the PISPC, Omer Sewell, Individually and as District Director of the Defendant, INS, and Edwin Meese, Individually and as Attorney General of the United States (hereinafter “Defendants”). Plaintiffs allege that they are current and former alien detainees of the INS whom Defendants employed in grounds maintenance, cooking, laundry and other services at the rate of one dollar ($1.00) per day. Further alleging that this practice is a violation of the Fair Labor Standards Act (hereinafter “FLSA”), 29 U.S.C. §§ 201-219, Plaintiffs seek relief in the form of unpaid minimum wages, statutory liquidated damages, attorneys’ fees and costs, and injunctive relief pursuant to the FLSA. Plaintiffs allege that the Court has subject matter jurisdiction pursuant to 29 U.S.C. §§ 216(b) and 217 as an action under the FLSA, pursuant to 28 U.S.C. § 1346(a)(2) as an action against an agency and officers of the United States, and pursuant to 28 U.S.C. § 1361 as an action to compel the Defendant officers of the United States to perform duties owed to Plaintiffs. Defendants have filed a Motion to Dismiss Plaintiffs’ cause of action, alleging that Plaintiffs have failed to state a cause of action upon which relief can be granted. FED.R.CIV.P. 12(b)(6). After considering the pleadings, the memoranda on file and the arguments of counsel, the Court is of the opinion that Defendants’ Motion to Dismiss Plaintiffs’ cause of action should be granted. ANALYSIS It would be improper for the Court to grant Defendants' Motion to Dismiss Plaintiffs’ cause of action pursuant to Rule 12(b)(6) unless Plaintiffs do not make any factual allegations that would support a cause of action. Keating v. Shell Chemical Co., 610 F.2d 328 (5th Cir.1980). According to the affidavit of INS District Director Omer G. Sewell (hereinafter “Defendant Sewell”) that was submitted as an attachment to the Motion to Dismiss, the PISPC is an alien detention facility located near Harlingen, Texas. Defendant Sewell further asserts that, as part of the detention program, it is customary to announce to the detainees, over a public address system, that volunteer duties are available to those detainees who wish to participate. Pursuant to 8 U.S.C. § 1555(d), which provides for payment of allowances to aliens for work performed while held in custody under the immigration laws, volunteers are compensated one dollar ($1.00) per day for their participation. The amount of payment was set by congressional act. Department of Justice Appropriation Act, 1978, Pub.L. No. 95-86, 91 Stat. 426 (1978). Despite this apparent exchange of money for labor, Plaintiffs are not covered by the FLSA. Under the FLSA, an “employee” is defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1)_ [I]t would not be within the legislative purpose of the FLSA to protect those in Plaintiffs’ situation. The congressional motive for enacting the FLSA, found in the declaration of policy at 29 U.S.C. § 202(a), was to protect the “standard of living” and “general well-being” of the worker in American industry. Alexander v. Sara, Inc., 559 F.Supp. 42 (M.D.La.1983), aff'd. 721 F.2d 149 (5th Cir.1983). Because they are detainees removed from American industry, Plaintiffs are not within the group that Congress sought to protect in enacting the FLSA. While both Plaintiffs and Defendants admit that there are no cases dealing directly with factually identical circumstances, several cases have held that prison inmates, who are similar to detainees in that they have been incarcerated and are under the direct supervision and control of a governmental entity should not be protected under the FLSA. Alexander v. Sara, Inc., 559 F.Supp. 42 (M.D.La.1983), aff'd. 721 F.2d 149 (5th Cir.1983). Sims v. Parke Davis & Co., 334 F.Supp. 774 (E.D.Mich.1971), aff'd. 453 F.2d 1259 (6th Cir.1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1196, 31 L.Ed.2d 254 (1972); Worsley v. Lash, 421 F.Supp. 556 (N.D.Ind.1976). See also Lavigne v. Sara, Inc., 424 So.2d 273 (La.App. 1st Cir.1982). These prior decisions on the issue have recognized imprisoned individuals are not covered under the FLSA because they do not fit the statutory definition of employee and because the congressional intent of the FLSA was to protect the standard of living and general well-being of the worker in American industry. 721 F.2d at 150. Those courts have concluded that an extension of the FLSA to the prison inmate situation was not, therefore, legislatively contemplated. Id. Because of the similarity in circumstances between the prison inmates and Plaintiff detainees here, the reasons noted by those courts for not extending the FLSA are applicable in this case. Finally, Plaintiffs allege in their Memorandum in Opposition to Defendants’ Motion to Dismiss that 8 U.S.C.A. § 1555(d) makes a distinction based on alienage without a compelling governmental purpose to justify this classification and is, therefore, unconstitutional. 8 U.S.C.A. § 1555(d) is part of a statutory scheme of Title 8 of the United States Code regulating aliens and nationality and is an example of the broad congressional power over immigration and naturalization. See generally Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (noting that there are many federal statutes that distinguish between citizens and aliens). Because of this broad congressional power, immigration legislation is subject to a limited scope of judicial inquiry. Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). The Court will uphold the constitutionality of the statute as a valid exercise of the congressional power to regulate the conduct of aliens. . "Appropriations now or hereafter provided for the Immigration and Naturalization Service shall be available for ... (d) payment of allowances (at such rate as may be specified from time to time in the appropriation Act involved) to aliens, while held in custody under the immigration laws, for work performed_” 8 U.S.C. § 1555(d). . Further evidence that alien detainees are not government "employees” lie in critical features of government employment. “In particular, a person claiming compensation as an employee of the United States must show that he or she has rendered service under an appointment to a federal position made by a government official authorized to make the appointment. Baker v. United States, 222 Ct.Cl. 263, 272, 614 F.2d 263, 268 (1980).” Emory v. United States, 2 Cl.Ct. 579, 580 (1983). Plaintiffs here make no such claim. Moreover, the federal government usually authorizes the employment of aliens only under limited circumstances, none of which apply here. See, e.g., § 603 of the Treasury, Postal Service and General Government Appropriations Act, 1989 (Public Law 100-440, Sept. 22, 1988, 102 Stat. 1751). By negative inference, alien detainees whose work is described by no statute authorizing use of taxpayers’ money to pay government employees cannot claim such status. . Cf. Wilks v. District of Columbia, 721 F.Supp. 1383, 1384-85 (D.D.C.1989) ("court found that plaintiffs-foremen’s supervision of inmates was not the supervision of employees" under the FLSA); Emory v. United States, 2 Cl.Ct. 579, 580 (1983) (prisoner work while incarcerated is not government employment), aff'd, 727 F.2d 1119 (Fed.Cir.1983). Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_appel1_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". Nels LARIVE, Plaintiff, v. UNITED STATES of America, Appellee, Jerry Lindstrom, d/b/a Lindstrom Construction Company, Appellant. No. 20731. United States Court of Appeals, Eighth Circuit. Oct. 14, 1971. Rehearing Denied Dec. 3, 1971. Albert T. Reddish, Alliance, Neb., for appellant. Robert E. Kopp, Atty., U. S. Dept. of Justice, Washington, D. C., for appellee. Before MATTHES, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges. BRIGHT, Circuit Judge. Plaintiff Neis Larive sustained severe electrical burns and related bodily injuries when he accidently came in contact with a live electrical conductor. The accident occurred when Larive, then employed by the contractor, Jerry Lind-strom, d/b/a Lindstrom Construction Company, was performing electrical construction work on behalf of his employer, for the United States Department of Interior, Bureau of Reclamation, at an electric power substation at Alliance, Nebraska. Larive, prior to the accident, thought that the electrical conductor with which he came in contact was de-energized. Larive brought an action for damages against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2674, and joined his employer, Lindstrom, because of the latter’s interest in the claim arising from the payment of workmen’s compensation benefits to Larive under the Nebraska law. The United States cross-claimed for indemnity against contractor Lind-strom contending that Lindstrom should be held Hable for the accident and the consequent damages sustained by Larive in the event that the plaintiff should recover in the principal action. During the trial, the United States settled with Larive for $301,000 and, in addition, paid Larive’s wife the further sum of $50,000 on her separate suit brought against the government for loss of consortium. Thereafter, the government pressed its cross-claim for indemnity to conclusion. The trial court awarded the United States a judgment of $175,000 plus interest on the cross-claim for indemnity, this figure representing fifty per cent of the amounts which the United States had paid to Larive and Larive’s wife. Lindstrom prosecutes this timely appeal from the judgment granting the government indemnity. The trial court’s opinion is reported at 318 F.Supp. 119 (D.S.D.1970). The trial court found that the failure of Larive’s employer to notify Larive of the actual hazards on the job, as well as misrepresentations made to Larive by the Bureau of Reclamation representative, contributed to causing plaintiff’s injuries, and the court determined the relative fault of each to be fifty per cent. Upon our review, we find that substantial evidence supports these crucial findings. Appellant has failed to demonstrate them to be clearly erroneous. The United States, however, concedes that the award should be reduced by $25,000 since the trial court took into consideration the settlement for $50,000 which the United States paid to Mrs. Larive on her separate action. This separate action was not involved in the cross-claim for indemnity and the trial court erred in awarding any indemnity in this proceeding on account of the government’s settlement with Larive’s wife. Appellant takes further exception to the district court’s order that interest on the judgment be computed from June 26, 1968, the date of the settlement between the United States and Larive. This exception is not well taken. The government’s recovery here is ' based on indemnification by Lindstrom in proportion to his fault in causing Larive’s injuries. See United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970). In the usual indemnity case the indemnitor becomes immediately liable, upon the expenditure by the indemnitee, for that portion of the expenditure covered by the indemnification agreement, even though a judicial determination is required to determine the amount of that liability. Because we have affirmed the finding that Lindstrom was liable at the time the government settled with Larive, for that portion of the settlement attributable to Lindstrom’s negligence, the government, in making settlement with Larive, expended funds on behalf of Lindstrom, its indemnitor. In this posture the district court was justified in awarding interest on the government’s recovery from June 26, 1968, the date of settlement with Larive. See Kincade v. C & L Rural Electric Cooperative Corp., 299 S.W.2d 67, 73 (Ark.1957); cf. Terminal R. Ass’n of St. Louis v. United States, 182 F.2d 149, 151 (8th Cir. 1950). The appellants have failed to demonstrate any error of the trial court by citing appropriate authority suggesting a contrary result. We therefore affirm the district court view that interest should be allowed from the date of settlement with the claimant Larive. The judgment is modified by reducing the same in the amount of $25,000. As modified, the judgment is affirmed. No costs shall be taxed by either party. . The original settlement was for $306,000, which amount included $5,000 earmarked for an anticipated surgical operation. Following Larive’s decision not to undergo the operation, the amount of his final settlement was reduced to $301,000. . Lindstrom agreed to be “responsible for all damages to persons or property that occur [red] as a result of his fault or negligence.” Under this contractual obligation, the extent of a contractor’s liability to indemnify the United States will be premised on the basis of comparative negligence “to the full extent that [his] negligence, if any, contributed to the injuries” sustained by the employee. United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_usc1	19	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, Appellee, v. James G. SORCE, Jr., Appellant. No. 8474. United States Court of Appeals Fourth Circuit. Argued June 6, 1962. Decided Sept. 11, 1962. Harold Buchman, Baltimore, Md. (Lawrence B. Coshnear, Baltimore, Md., on brief), for appellant. Arnold M. Weiner, Special Asst, to the U. S. Atty. for the D. of Maryland (Joseph D. Tydings, U. S. Atty. for the D. of Maryland, on brief), for appellee. Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges. SOBELOFF, Chief Judge. This appeal from a conviction under the mail fraud statute challenges, primarily, the venue of the trial in the United States District Court for the District of Maryland. The First Capitol Savings and Loan Association, now in bankruptcy, was a Maryland corporation organized at the instigation of the defendant. It maintained offices in Belleville, New Jersey, near where the defendant lived, as well ás in Baltimore, Maryland. A New Jersey man, Maurice Moriarty, was the president of the Association, but he was only a figurehead, having a full-time unskilled job elsewhere loading and unloading trucks. Incontestably, the defendant was the sole dominating force in the affairs of the Association throughout its existence. Howard Rothacker, the victim of the fraud changed to the defendant, resided in Hazelton, Pennsylvania. Early in 1959, Rothacker wrote to the Association in response to an advertisement the defendant caused to be published in a Philadelphia newspaper, soliciting accounts for the Association. Rothacker was attracted by the very high interest rate offered, but desired insurance to cover his deposits. A series of letters passed between Rothacker in Pennsylvania and the defendant in New Jersey, writing over Moriarty’s signature. It was represented to Rothacker, first, that negotiations were in progress with an insurance company to insure his deposits and later, when these negotiations fell through, that federal bonds had been purchased by the Association and set aside in special escrow or trust to cover the deposits. The evidence presented to the jury showed, however, that during most of the period in question the defendant had no such bonds in his possession, and that when he had bonds they were in no way segregated for Rothacker’s protection but remained under the sole control of the defendant. Ih reliance on the false representations made to him, Rothacker mailed to the Association’s Maryland office a series of deposits aggregating in excess of $40,-000.00. When the Association later went into bankruptcy, Rothacker found that his deposits were not secured by federal bonds. He was thus forced to share the assets of the Association with the other general creditors, and consequently suffered a heavy financial loss. On these facts, the defendant contends that Maryland was not the proper venue for his trial. It is a settled constitutional principle that venue in a criminal case may be laid in any district where the crime was committed. In deciding in any particular case the propriety of the venue, it is necessary to determine whether the applicable venue statute permits an indictment in that district, and of course whether the crime was committed there. Contrary to the defendant’s contentions, we find that both tests are met in the present case. The mailings which are the subject of the six-count indictment in this case are not the preliminary correspondence between the defendant in New Jersey and Rothacker in Pennsylvania, which set the trap, but the mailings by Rothacker, enclosing his checks, to the Association in Maryland in response to the fraudulent inducements of the defendant. In order to support a conviction under the mail fraud statute, 18 U. S.C.A. § 1341, it is not necessary that the false representations were themselves transmitted by mail, nor that the defendant personally received the mail from his victim. It is sufficient that the use of the mails was caused by the defendant in furtherance of his fraudulent scheme. In this case, the defendant’s aim was to induce Rothacker to send his savings to the Association in Maryland. The receipt of the mail there was an integral part, indeed the ultimate objective, of the defendant’s fraudulent scheme. Consequently, while criminal acts were also committed in New Jersey and in Pennsylvania, it is certain that the federal offense charged was also committed in Maryland. Having established that the crime took place in Maryland, there is no doubt that the requirements of the statute for establishing venue in that district were met. 18 U.S.C.A. § 3237(a). It provides in pertinent part: “Any offense involving the use of the mails * * * is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such * * mail matter moves.” (Our italics). As the fraudulently induced mail was sent by Rothacker into Maryland, the case falls within the express terms of the statute. The defendant argues that the trial should have been held in New Jersey where he lives and where, he claims, most of the witnesses and records were to be found. However, the defendant did not move in the District Court under Rule 21(b) for a transfer of the case to another district. Fed.R.Crim.P. 21 (b), 18 U.S.C.A. The asserted grounds are not sufficient to defeat venue once it has been shown that the constitutional and statutory prerequisites have been met. A number of other issues are raised, but the record lends no support to any of them. For example, the defendant argues that unfavorable publicity in the Baltimore newspapers directed against savings and loan associations prevented him from having a fair trial before an impartial jury in the District of Maryland. However, the newspaper articles submitted to the District Court are not such as would automatically preclude a fair trial, and the defendant made no attempt when the jury was empaneled to show that any juror had been influenced by the publicity. Finally, it is urged that the District Judge was excessive in his questioning of the defendant. The record shows, however, that the Judge interposed his questions only after the cross-examination of the defendant became disjointed and confusing because of his persistent failure to reply to questions in a straightforward manner. When a defendant or other witness gives unresponsive, evasive, and self-contradictory answers, the judge is not obliged to remain inert. It may become his duty to intervene. Here the Judge did not abuse his discretion in asking questions designed solely to clarify the facts for the jury, and we find nothing unfair in the substance or form of the interrogation. The Judge merely exposed the falsity of the defendant’s brazen insistence that he had, in accordance with his representation, set aside bonds in trust for Roth-acker, when in truth he had acquired no bonds whatever when he first made the representation and later, when he did acquire bonds, they were in an amount less than represented and at no time removed from his own absolute control or put within the reach of Rothacker or anyone else for his protection. A careful examination of the entire record convinces us that the defendant had a fair trial, conducted impartially and without error, that the case was submitted to the jury under proper instructions, and that its verdict of guilty was the only possible one. Affirmed. . Travis v. United States, 364 U.S. 631, 634, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) ; United States v. Cores, .356 U.S. 405, 407, 78 S.Ct. 875, 2 L.Ed.2d 873 (195S); Johnston v. United States, 351 U.S. 215, 220-221 (1956); United States v. Johnson, 323 U.S. 273, 275 (1944). . “§ 1341. Frauds and swindles “Whoever, having devised * * * any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * for the purpose of executing such scheme or artifice or attempting so to do * * * knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.” . See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954); Kann v. United States, 323 U.S. 88, 65 S.Ot. 148, 89 L.Ed. 88 (1944); Marvin v. United States, 279 F.2d 451, 454 (10th Cir. 1960); Williams v. United States, 278 F.2d 535, 538 (9th Cir. 1960); Gregory v. United States, 253 F.2d 104, 109-110 (5th Cir. 1958); Stevens v. United States, 227 F.2d 5 (8th Cir. 1955). Compare Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). . “Rule 21. Transfer from the District or Division for Trial ❖ * sis sis * * * “(b) Offense Committed in Two or More Districts or Divisions. The court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged.” . See United States v. Milanovich, 303 F.2d 626 (4th Cir. 1962). . See United States v. DeSisto, 289 F.2d 833 (2d Cir.1961); Holder v. United States, 231 F.2d 660 (4th Cir. 1956). 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_6-3	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "labor relations". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. McCLURE ASSOCIATES, INC., Respondent. No. 76-1964. United States Court of Appeals, Fourth Circuit. Argued April 5, 1977. Decided June 13, 1977. Lynne Deitch, Washington, D.C. (John H. Ferguson, John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief), for petitioner. J. Roy Weathersby and R. Paul Cannon, Atlanta, Ga., for respondent. Before BRYAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges. Judge Craven concurred in this opinion but died before it was filed. PER CURIAM. In this case we enforce an order which required the Company to cease and desist from violation of §§ 8(a)(1) and 8(a)(3) of the Labor Management Relations Act of 1947, 29 U.S.C. §§ 158(a)(1) and 158(a)(3), and for reinstatement and back pay. The Company (an electrical subcontractor) discharged for lack of work twelve employees, the Company taking the position there was economic justification for their discharge. Assuming that such economic justification for a reduction in force did exist, we yet think there was substantial evidence to support the Board’s finding that the eight of them which concern us here were discharged because of their union activity. Each of the eight, on at least one occasion, had either been threatened with discharge on account of their union activity or interrogated with respect to the same or both; the lead foreman, who was one of the supervisory employees directly involved, did not testify; and the discharges coincided with a union campaign which was known to the Company. Without detailing the facts, we think there was substantial evidence to support the Board’s order. The Company objects that the Administrative Law judge improperly refused in evidence an affidavit obtained by a Board agent in his investigation from one Winship, project manager of the general contractor, which affidavit would have tended to prove that the general contractor directed the Company to reduce its force. The Board on oral argument takes the position that the affidavit, excluded as hearsay by the Administrative Law judge, was properly so excluded, because it was unreliable and not subject to cross-examination. We agree with the Board. Assuming without deciding that the Federal Rules of Evidence apply to such hearings, the affidavit did not comply with Rule 804(b)(1) of the Federal Rules of Evidence, since it was not a deposition taken in compliance with law in the same or another proceeding; and in addition, although the affidavit was taken by a board agent, there was no opportunity for cross-examination. We also think the affidavit was not admissible under Rule 803(24), for we do not think the affidavit had equivalent circumstantial guarantees of trustworthiness. ENFORCEMENT GRANTED. Question: What is the specific issue in the case within the general category of "labor relations"? A. union organizing B. unfair labor practices C. Fair Labor Standards Act issues D. Occupational Safety and Health Act issues (including OSHA enforcement) E. collective bargaining F. conditions of employment G. employment of aliens H. which union has a right to represent workers I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual) J. other labor relations Answer:
sc_petitioner	160	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. BALTIMORE & OHIO RAILROAD CO. et al. v. ABERDEEN & ROCKFISH RAILROAD CO. et al. No. 13. Argued October 17, 1968. Decided November 12, 1968. Edward A. Kaier argued the cause for appellants in No. 13. With him on the briefs were Joseph F. Eshel- man, Richard B. Montgomery, Jr., Eugene E. Hunt, Kenneth H. Lundmark, and Kemper A. Dobbins. Arthur J. Cerra argued the cause for appellant in No. 15. With him on the brief was Robert W. Ginnane. Howard J. Trienens argued the cause for the Southern railroad appellees. With him on the brief were Ashton Phelps, George L. Saunders, Jr., John W. Adams, Phil C. Beverly, James A. Bistline, James W. Hoeland, John E. McCullough, and Donal L. Turkal. Carl E. Sanders argued the cause for appellees Southern Governors’ Conference et al. With him on the brief was Walter R. McDonald. Together with No. 15, Interstate Commerce Commission v. Aberdeen & Rockfish Railroad Co. et al., on appeal from the same court. Mr. Justice Douglas delivered the opinion of the Court. In these cases the Interstate Commerce Commission undertook to prescribe just, reasonable, and equitable divisions of joint rates pursuant to § 15 (6) of the Interstate Commerce Act, 24 Stat. 384, as amended. The Commission found that existing divisions violated § 15 (6) because they allocated to Northern lines a lesser share of the revenues from the joint rates than would be warranted by their share of the expenditures made in providing the joint service. 325 I. C. C. 1, 50. The Southern lines brought suit before a three-judge District Court to enjoin and to set aside the Commission’s order. The District Court set aside the Commission’s order and remanded the case for further proceedings. 270 F. Supp. 695. We noted probable jurisdiction. 390 U. S. 940. Both Northern and Southern lines used Rail Form A as their basic formula, that form being a rail freight formula for determining freight service costs which utilizes the expenses and statistics for a given year as reported to the Commission by the carriers and supplemented by special studies of the'carriers. The Southern lines proposed 12 adjustments, five of which the Commission accepted and seven of which it rejected. The year 1956 was the one both Southern and Northern lines used in the final cost analysis. The cost level for that year, said the Commission, was higher in the North than in the South for like services; and it concluded that that situation would most likely continue in the immediate future. In that year the Northern lines received 44.64% of the revenues while incurring 46.35318% of the fully distributed costs. Accordingly, the Commission prescribed new divisions based on the fully distributed costs and divided the revenues in the same proportion to those costs. The shift in revenues resulting from the new divisions was approximately $8,000,000 a year, giving the Northern lines an overall increase in revenues from the traffic involved of 3.5% and reducing the revenues of Southern lines by about 3%. When the Southern lines sued to set aside the new divisions, the Northern lines intervened as defendants. The District Court held that the Commission’s order was not supported by substantial evidence and reasoned findings within the meaning of §§ 8 (b) and 10 (e) of the Administrative Procedure Act and, as noted, remanded the case for further proceedings. The present problem of divisions deals only with North-South traffic which represents 6% of the total traffic of the North and 21.4% of the total traffic of the South. The costs of that North-South traffic are not isolated in the findings. The average costs used relate to all Northern traffic and to all Southern traffic. Nearly 80% of the total Northern traffic is intra-territorial and handled entirely in the North, and it is therefore argued that that traffic has the dominant influence on the Northern average. As the District Court said, it is difficult to maintain that these intra-territorial Northern costs are the same or approximately the same as Northern costs in handling traffic between North and South. In another divisions case, the Commission ruled that territorial average costs are entitled to little weight in determining the costs of handling particular movements. Increased Freight Rates, 1967, 332 I. C. C. 280, 303. The use of “unsifted averages” of costs does not necessarily establish greater costs either in rate cases (ICC v. Mechling, 330 U. S. 567, 583) or in divisions cases. The ruling of the District Court was, not that territorial average costs were irrelevant or that Rail Form A was not a usable and useful tool for cost determination, but that territorial average costs could not be used consistently with the statutory requirements for precise and relevant findings without any evidence relating the territorial average costs to North-South trafile. While Southern lines had offered evidence showing the costs of handling North-South traffic in the South, there was not always any such Northern offer; nor did the Commission always exercise its undoubted authority to gather it on its own. On the question whether territorial average costs represent costs of the North-South traffic, the Commission only replies that where particular traffic uses physical facilities and employees’ services in common with other traffic “and has been shown to have no distinguishing characteristics,” the application of Rail Form A costs is proper. Yet the Commission stated “its exclusive standard” for resolving this divisions question to be “the relevant cost of handling the specific freight traffic to which the divisions apply.” 270 F. Supp., at 710. We agree with the District Court that there is no substantial evidence that territorial average costs are necessarily the same as the comparative costs incurred in handling North-South freight traffic. If we were to reverse the District Court, we would in effect be saying that the expertise of the Commission is so great that when it says that average territorial costs fairly represent the costs of North-South traffic, the controversy is at an end, even though the record does not reveal what the nature of that North-South traffic is. The requirement for administrative decisions based on substantial evidence and reasoned findings — which alone make effective judicial review possible — would become lost in the haze of so-called expertise. Administrative expertise would then be on its way to becoming “ ‘a monster which rules with no practical limits on its discretion.’ ” Burlington Truck Lines v. United States, 371 U. S. 156, 167. That is impermissible under the Administrative Procedure Act. If indeed that lax procedure were sanctioned in a North-South divisions case, whose solution turns solely on costs, the class rate discrimination in favor of the North and against the South which we condemned in New York v. United States, 331 U. S. 284, could well flourish in another form. Rail Form A was used in Chicago & N. W. R. Co. v. Atchison, T. & S. F. R. Co., 387 U. S. 326, and we approved its use. Moreover, ever since the New England Divisions Case, 261 U. S. 184, at 196-197, it has been held that mathematical exactness in dividing each rate of each carrier is not necessary, because practical necessities demand otherwise. In addition we repeat what we said in Chicago & N. W. R. Co. v. Atchison, T. & S. F. R. Co., supra, at 358, that there are no “mechanical restrictions on the range of remedies from which the Commission may choose” in solving a divisions case or making its expert judgment as to what scale of costs should be used in making the allocation. Precision and exactitude in the mathematical sense are not possible. Yet the nature and volume of the traffic in question must be known and exposed, if the costs of other traffic are to govern a division of rates. Moreover, where Rail Form A costs are shown to be a distortion when applied to the particular traffic over which the divisions dispute arises, some effort must be exerted to make an adjustment which fairly reflects the difference in the costs or to make clear that there is in fact no basic, material difference. The Commission states to us that it cannot be expected to know whether peculiar characteristics may exist respecting the traffic involved in the divisions dispute or whether special studies may be needed. Yet if that is true, the Commission’s expertise is not equal to the task and the opposed carriers must be directed to expose the various versions of the conflict so that the Commission may make its informed decision. That was done on aspects of the present cases (325 I. C. C., at 25) and no reason is apparent why it cannot be done on other aspects of the controversy. The Commission in its argument before us said that Rail Form A territorial average costs were “adjusted” to reflect the costs attributable to the North-South traffic issue, which is true as respects five of the 12 adjustments proposed by the Southern lines. On remand of the cases to the Commission we think specific findings must be made on the several items of so-called “adjustment” of average territorial costs to which we now turn. One is the question of commuter deficits, which swell the average territorial costs in the North while they are less important in the South that does not yet have substantial commuter operations. Passenger deficits generally are considered as part of the costs of providing freight service, since the common facilities that support each must be maintained for both types of service. There is, however, evidence that in some territories as much as one-half of the track facilities are maintained solely because of the company’s suburban service and even a larger proportion of other facilities such as stations, terminals, coach yards, and repair shops is maintained exclusively for commuter service. The Commission, however, ruled that costs of commuter service include “common costs which must be incurred to provide freight service or intercity passenger service” and that the deficit from suburban operations was properly included in “the constant costs.” The Commission on the other hand found that “many individual items of suburban service can be considered solely related ... to suburban service.” 325 I. C. C., at 78. How these two findings can be reconciled is not apparent. The Commission in its argument before us rests primarily on revenue needs — -“Such losses must be recovered from railroad freight operations if railroads are to remain solvent.” Section 15 (6) makes plain that revenue needs come into focus in divisions cases. Revenue problems under § 15 (6) at times have resulted in putting a part of one area’s transportation costs upon other sections of the country. See New England Divisions Case, 261 U. S. 184, 191-195. But that issue is not presented in these cases. The issue in the present cases was costs, not revenue. The allocation either to the North or to the South of costs peculiar to its territorial traffic is a task with which the Commission is familiar. Thus in these very cases it excluded certain platform deficits incurred by the Northern lines because they were not related to North-South freight traffic. 325 I. C. C., at 56. There is no apparent reason why costs related solely to commuter service in the North cannot be determined. As to the costs of interchanging cars in North-South traffic at territorial border points, there is evidence in the record that the interchange operations performed by Northern lines are no more costly than those performed by Southern lines. Yet the Commission allowed the Northern lines a border interchange cost that is 58% higher than the one allowed the Southern lines. That apparently was done solely because Rail Form A showed higher interchange costs when all territorial interchanges were considered. We cannot bridge the gap by blind reliance on expertise which in this instance would be a mere assertion that no difference means a substantial difference. The empty freight car return ratios is another example of deficient findings. There is evidence that higher costs of Northern lines result from the Commission’s use of higher Northern territorial average empty return ratios. There was no attempt made to show that the latter were at all applicable to North-South traffic. The problem arises in the North by reason of boxcars on shuttle from Detroit to automobile plants, most of which are in the North. These shuttle boxcars return empty to Detroit. We know from the record that this is a major cost item as 800,000 carloads of automobile parts move out of Detroit each year. The record does not show the extent to which these empty returns swell the territorial average costs in the North, though it does show that Northern use of these shuttle boxcars is substantially higher than the Southern proportion. The District Court concluded the territorial average boxcar empty return ratios could not be said, absent specific findings, to reflect the costs of the North-South freight traffic relevant to this problem of divisions. There are other proposed adjustments on which we think the Commission’s findings are adequate. The judgment of the District Court is modified and as modified it is Affirmed. 49 U. S. C. §15 (6) provides in relevant part: “Whenever . . . the Commission is of opinion that the divisions of joint rates, fares, or charges, applicable to the transportation of passengers or property, are or will be unjust, unreasonable, inequitable, or unduly preferential . . . the Commission shall by order prescribe the just, reasonable, and equitable divisions thereof to be received by the several carriers .... In so prescribing and determining the divisions of joint rates, fares, and charges, the Commission shall give due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare, or charge.” Section 8 (b), 60 Stat. 242, now 5 U. S. C. §567 (c) (1964 eel., Supp. Ill), provides in relevant part: “The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of— “(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and “(B) the appropriate rule, order, sanction, relief, or denial thereof.” Section 10 (e), 60 Stat. 243, now 5 U. S. C. §706 (1964 ed., Supp. Ill), provides in relevant part: “The reviewing court shall . . . “(2) hold unlawful and set aside agency action, findings, and conclusions found to be . . . “(E) unsupported by substantial evidence . . . .” These five constituted way and through train separation, platform costs, switching and terminal companies, short lines (Class II railroads), train tonnage adjustment — all as discussed in Appendix B to the Commission’s opinion. 325 I. C. C., at 55 et seq. On revenue needs the Commission said: “We find that no affirmative reasons appear in this record which would warrant any adjustment of the divisions in question over and above the relative costs of service, either on the grounds of greater revenue needs or otherwise.” 325 I. C. C., at 49. Car costs. The Southern lines sought to substitute average car costs for the entire country in lieu of Rail Form A territorial average. The Commission concluded that the “use of a national average car cost conceals territorial differences in cost which are important in the consideration of divisions between the two involved territories.” 325 I. C. C., at 64. Cars interchanged between rail and water carriers at ports. The Southern and Northern lines submitted opposed evidence and views and the Commission concluded that the count of cars in Rail Form A was warranted. 325 I. C. C., at 58-60. Transit commodities. They move under a single published rate and receive some kind of storage or processing in transit and the rate covers the movement of the raw material into and the movement of the finished product beyond the transit or processing point. The Southern lines would include deficits on pulpwood and wet phosphate rock which they claim to be related in transit to the outbound movement of paper products and dry phosphate rock. But these were intraterritorial costs of the Southern lines which the Commission found were not properly transferable to the interterritorial costs, the only costs pertinent to this divisions case. 325 I. C. C., at 80. Switching costs. The Southern lines made special studies of switching costs which the Commission reviewed at length. 325 I. C. C., at 71-77. The Northern lines sought to discredit the studies and the sample on which they rested. The Commission took Rail Form A territorial average switching costs as the most accurate measure of the relative switching costs, saying: “Territorial average costs are particularly appropriate to the traffic in this case because it is a large and varied body of traffic moving to and coming from terminals in all parts of both territories. In our opinion, and we so find, the depressing effect, if any, of volume switching commodities on the average would affect both territories and, for purposes of comparison, would be largely offsetting.” 325 I. C. C., at 76. Contrary to the District Court, we believe these are adequate findings. 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:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. BOULWARE v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 06-1509. Argued January 8, 2008 Decided March 3, 2008 Souter, J., delivered the opinion for a unanimous Court. John D. Cline argued the cause for petitioner. With him on the briefs was C. Kevin Marshall. Deanne E. Maynard argued the cause for the United States. With her on the brief were Solicitor General Clement, Acting Assistant Attorney General Morrison, Deputy Solicitor General Dreeben, Alan Hechtkopf Karen Quesnel, and S. Robert Lyons. John L. Pollok and Joshua L. Dratel filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae. Justice Souter delivered the opinion of the Court. Sections 301 and 316(a) of the Internal Revenue Code set the conditions for treating certain corporate distributions as returns of capital, nontaxable to the recipient. 26 U. S. C. §§ 301, 316(a) (2000 ed. and Supp. V). The question here is whether a distributee accused of criminal tax evasion may-claim return-of-capital treatment without producing evidence that either he or the corporation intended a capital return when the distribution occurred. We hold that no such showing is required. I “[T]he capstone of [the] system of sanctions... calculated to induce... fulfillment of every duty under the income tax law,” Spies v. United States, 317 U. S. 492, 497 (1943), is 26 U. S. C. § 7201, making it a felony willfully to “attemp[t] in any manner to evade or defeat any tax imposed by” the Code. One element of tax evasion under § 7201 is “the existence of a tax deficiency,” Sansone v. United States, 380 U. S. 343, 351 (1965); see also Lawn v. United States, 355 U. S. 339, 361 (1958), which the Government must prove beyond a reasonable doubt, see ibid. (“[0]f course, a conviction upon a charge of attempting to evade assessment of income taxes by the filing of a-fraudulent return cannot stand in the absence of proof of a deficiency”). Any deficiency determination in this case will turn on §§ 301 and 316(a) of the Code. According to § 301(a), unless another provision of the Code requires otherwise, a “distributton of property” that is “made by a corporation to a shareholder with respect to its stock shall be treated in the manner provided in [§ 301(c)].” Under § 301(c), the portion of the distribution that is a “dividend,” as defined by § 316(a), must be included in the recipient’s gross income; and the portion that is not a dividend is, depending on the shareholder’s basis for his stock, either a nontaxable return of capital or a gain on the sale or exchange of stock, ordinarily taxable to the shareholder as a capital gain. Finally, § 316(a) defines “dividend” as “any distribution of property made by a corporation to its shareholders— “(1) out of its earnings and profits accumulated after February 28, 1913, or “(2) out of its earnings and profits of the taxable year (computed as of the close of the taxable year without diminution by reason of any distributions made during the taxable year), without regard to the amount of the earnings and profits at the time the distribution was made.” Sections 301 and 316(a) together thus make the existence of “earnings and profits” the decisive fact in determining the tax consequences of distributions from a corporation to a shareholder with respect to his stock. This requirement of “relating the tax status of corporate distributions to earnings and profits is responsive to a felt need for protecting returns of capital from tax.” 4 Bittker & Lokken ¶ 92.1.1, at 92-3. II In this criminal tax proceeding, petitioner Michael Boulware was charged with several counts of tax evasion and filing a false income tax return, stemming from his diversion of funds from Hawaiian Isles Enterprises (HIE), a closely held corporation of which he was the president, founder, and controlling (though not sole) shareholder. At trial, the United States sought to establish that Boulware had received taxable income by “systematically diverting] funds from HIE in order to support a lavish lifestyle.” 384 F. 3d 794, 799 (CA9 2004). The Government’s evidence showed that “[Boulware] gave millions of dollars of HIE money to his girlfriend... and millions of dollars to his wife... without reporting any of this money on his personal income tax returns.... [H]e siphoned off this money primarily by writing checks to employees and friends and having them return the cash to him, by diverting payments by HIE customers, by submitting fraudulent invoices to HIE, and by laundering HIE money through companies in the Kingdom of Tonga and Hong Kong.” Ibid. In defense, Boulware sought to introduce evidence that HIE had no retained or current earnings and profits in the relevant taxable years, with the consequence (he argued) that he in effect received distributions of property that must have been returns of capital, up to his basis in his stock. See § 301(c)(2). Because the return of capital was nontaxable, the argument went, the Government could not establish the tax deficiency required to convict him. The Government moved in limine to bar evidence in support of Boulware’s return-of-capital theory, on the grounds of “irrelevance] in [this] criminal tax case,” App. 20. The Government relied on the Ninth Circuit’s decision in United States v. Miller, 545 F. 2d 1204 (1976), in which that court held that in a criminal tax evasion case, a diversion of funds may be deemed a return of capital only after “some demonstration on the part of the taxpayer and/or the corporation that such [a distribution was] intended to be such a return,” id., at 1215. Boulware, the Government argued, had offered to make no such demonstration. App. 21. The District Court granted the Government’s motion, and when Boulware sought “to present evidence of [HIE’s] alleged over-reporting of income, and an offer of proof relating to the issue of... dividends,” id., at 135, the District Court denied his request. The court said that “[n]ot only would much of [his proffered] evidence be excludable as expert legal opinion, it is plainly insufficient under the Miller case,” id., at 138, and accordingly declined to instruct the jury on Boulware’s return-of-capital theory. The jury rejected his alternative defenses (that the diverted funds were nontaxable corporate advances or loans, or that he used the moneys for corporate purposes), and found him guilty on nine counts, four of tax evasion and five of filing a false return. The Ninth Circuit affirmed. 470 F. 3d 931 (2006). It acknowledged that “imposing an intent requirement creates a disconnect between civil and criminal liability,” but thought that under Miller, “the characterization of diverted corporate funds for civil tax purposes does not dictate their characterization for purposes of a criminal tax evasion charge.” 470 F. 3d, at 934. The court held the test in a criminal case to be “whether the defendant has willfully attempted to evade the payment or assessment of a tax.” Ibid. Because Boulware “‘presented no concrete proof that the amounts were considered, intended, or recorded on the corporate records as a return of capital at the time they were made,’ ” id., at 935 (quoting Miller, supra, at 1215), the Ninth Circuit held that Boulware’s proffer was “properly rejected... as inadequate,” 470 F. 3d, at 935. Judge Thomas concurred because the panel was bound by Miller, but noted that “Miller — and now the majority opinion — hold that a defendant may be criminally sanctioned for tax evasion without owing a penny in taxes to the government.” 470 F. 3d, at 938. That, he said, not only “indicate[s] a logical fallacy, but is in flat contradiction with the tax evasion statute’s requirement... of a tax deficiency.” Ibid, (internal quotation marks omitted). We granted certiorari, 551 U. S. 1191 (2007), to resolve a split among the Courts of Appeals over the application of §§ 301 and 316(a) to informally transferred or diverted corporate funds in criminal tax proceedings. We now vacate and remand. III A The colorful behavior described in the allegations requires a reminder that tax classifications like “dividend” and “return of capital” turn on “the objective economic realities of a transaction rather than... the particular form the parties employed,” Frank Lyon Co. v. United States, 435 U. S. 561, 573 (1978); a “given result at the end of a straight path is not made a different result... by following a devious path,” Minnesota Tea Co. v. Helvering, 302 U. S. 609, 613 (1938). As for distributions with respect to stock, in economic reality a shareholder’s informal receipt of corporate property “may be as effective a means of distributing profits among stockholders as the formal declaration of a dividend,” Palmer v. Commissioner, 302 U. S. 63, 69 (1937), or as effective a means of returning a shareholder’s capital, see ibid. Accordingly, “[a] distribution to a shareholder in his capacity as such... is subject to §301 even though it is not declared in formal fashion.” B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ¶ 8.05[1], pp. 8-36 to 8-37 (6th ed. 1999) (hereinafter Bittker & Eustice); see also Gardner, The Tax Consequences of Shareholder Diversions in Close Corporations, 21 Tax L. Rev. 223, 239 (1966) (hereinafter Gardner) (“Sections 316 and 301 do not require any formal path to be taken by a corporation in order for those provisions to apply”). There is no reason to doubt that economic substance remains the right touchstone for characterizing funds received when a shareholder diverts them before they can be recorded on the corporation’s books. While they “never even pass through the corporation’s hands,” Bittker & Eustice ¶ 8.05[9], at 8-51, even diverted funds may be seen as dividends or capital distributions for purposes of §§301 and 316(a), see Truesdell v. Commissioner, 89 T. C. 1280 (1987) (treating diverted funds as “constructive” distributions in civil tax proceedings). The point, again, is that “taxation is not so much concerned with the refinements of title as it is with actual command over the property taxed — the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U. S. 376, 378 (1930); see also Griffiths v. Commissioner, 308 U. S. 355, 358 (1939). B Miller’s view that a criminal defendant may not treat a distribution as a return of capital without evidence of a eorresponding contemporaneous intent sits uncomfortably not only with the tax law’s economic realism, but with the particular wording of §§ 301 and 316(a), as well. As those sections are written, the tax consequences of a “distribution by a corporation with respect to its stock” depend, not on anyone’s purpose to return capital or to get it back, but on facts wholly independent of intent: whether the corporation had earnings and profits, and the amount of the taxpayer’s basis for his stock. Cf. Truesdell v. Commissioner, Internal Revenue Service (IRS) Action on Decision 1988-25, 1988 WL 570761 (Sept. 12, 1988) (recommendation regarding acquiescence), IRS Non Docketed Service Advice Review, 1989 WL 1172952 (Mar. 15,1989) (reply to request for reconsideration) (“[Ijntent is irrelevant.... [E]very distribution made with respect to a shareholder’s stock is taxable as ordinary income, capital gain, or not at all pursuant to section 301(c) dependent upon the corporation’s earnings and profits and the shareholder’s stock basis. The determination is computational and not dependent upon intent”). When the Miller court went the other way, needless to say, it could claim no textual hook for the contemporaneous intent requirement, but argued for it as the way to avoid two supposed anomalies. First, the court thought that applying §§301 and 316(a) in criminal cases unnecessarily emphasizes the exact amount of deficiency while “completely ignoring] one essential element of the crime charged: the willful intent to evade taxes....” 545 F. 2d, at 1214. But there is an analytical mistake here. Willfulness is an element of the crimes charged because the substantive provisions defining tax evasion and filing a false return expressly require it, see § 7201 (“[a]ny person who willfully attempts... ”); § 7206(1) (“[w]illfully makes and subscribes... ”). The element of willfulness is addressed at trial by requiring the Government to prove it. Nothing in §§ 301 and 316(a) as written (that is, without an intent requirement) relieves the Government of this burden of proving willfulness or impedes it from doing so if evidence of willfulness is there. Those two sections as written simply address a different element of criminal evasion, the existence of a tax deficiency, and both deficiency and willfulness can be addressed straightforwardly (in jury instructions or bench findings) without tacking an intent requirement onto the rule distinguishing dividends from capital returns. Second, the Miller court worried that if a defendant could claim capital treatment without showing a corresponding and contemporaneous intent, “[a] taxpayer who diverted funds from his close corporation when it was in the midst of a financial difficulty and had no earnings and profits would be immune from punishment (to the extent of his basis in the stock) for failure to report such sums as income; while that very same taxpayer would be convicted if the corporation had experienced a successful year and had earnings and profits.” 545 F. 2d, at 1214. “Such a result,” said the court, “would constitute an extreme example of form over substance.” Ibid. The Circuit thus assumed that a taxpayer like Boulware could be convicted of evasion with no showing of deficiency from an unreported dividend or capital gain. But the acquittal that the author of Miller called form trumping substance would in fact result from the Government’s failure to prove an element of the crime. There is no criminal tax evasion without a tax deficiency, see supra, at 424, and there is no deficiency owing to a distribution (received with respect to a corporation’s stock) if a corporation has no earnings and profits and the value distributed does not exceed the taxpayer-shareholder’s basis for his stock. Thus the fact that a shareholder distributee of a successful corporation may have different tax liability from a shareholder of a corporation without earnings and profits merely follows from the way §§301 and 316(a) are written (to distinguish dividend from capital return), and from the requirement of tax deficiency for a § 7201 crime. Without the deficiency there is nothing but some act expressing the will to evade, and, under § 7201, acting on “bad intentions, alone, [is] not punishable,” United States v. D’Agostino, 145 F. 3d 69, 73 (CA2 1998). It is neither here nor there whether the. Miller court was justified in thinking it would improve things to convict more of the evasively inclined by dropping the deficiency requirement and finding some other device to exempt returns of capital. Even if there were compelling reasons to extend § 7201 to cases in which no taxes are owed, it bears repeating that “[t]he spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute,” Morissette v. United States, 342 U. S. 246, 263 (1952) (opinion for the Court by Jackson, J.) (footnote omitted). If §301, § 316(a), or § 7201 could stand amending, Congress will have to do the rewriting. C Not only is Miller devoid of the support claimed for it, but it suffers the demerit of some anomalies of its own. First and most obviously, §§ 301 and 316 are odd stalks for grafting a contemporaneous intent requirement, given the fact that the correct application of their rules will often become known only at the end of the corporation’s tax year, regardless of the shareholder’s or corporation’s understanding months earlier when a particular distribution may have been made. Section 316(a)(2) conditions treating a distribution as a constructive dividend by reference to earnings and profits, and earnings and profits are to be “computed as of the close of the taxable year... without regard to the amount of the earnings and profits at the time the distribution was made.” A corporation may make a deliberate distribution to a shareholder, with everyone expecting a profitable year and considering the distribution to be a dividend, only to have the shareholder end up liable for no tax if the company closes out its tax year in the red (so long as the shareholder’s basis covers the distribution); when such facts are clear at the time the reporting forms and returns are filed, the shareholder does not violate § 7201 by paying no tax on the moneys received, intent being beside the point. And since intent to make a distribution a taxable one cannot control, it would be odd to condition nontaxable return-of-capital treatment on contemporaneous intent, when the statute says nothing about intent at all. The intent interpretation is strange for another reason, too (a reason in some tension with the Ninth Circuit’s assumption that an unreported distribution without contemporaneous intent to return capital will support a conviction for evasion). The text of § 301(a) ostensibly provides for all variations of tax treatment of distributions received with respect to a corporation’s stock unless a separate provision of the Code requires otherwise. Yet Miller effectively converts the section into one of merely partial coverage, with the result of leaving one class of distributions in a tax status limbo in criminal cases. That is, while § 301(a) expressly provides that distributions made by a corporation to a shareholder with respect to its stock “shall be treated in the manner provided in [§ 301(c)],” under Miller, a distribution from a corporation without earnings and profits would fail to be a return of capital for lack of contemporaneous intent to treat it that way; but to the extent that distribution did not exceed the taxpayer’s basis for the stock (and thus become a capital gain), § 301(a) would leave the distribution unaccounted for. It is no answer to say that § 61(a) of the Code would step in where § 301(a) has been pushed out. Although § 61(a) defines gross income, “[e]xcept as otherwise provided,” as “all income from whatever source derived,” the plain text of § 301(a) does provide otherwise for distributions made with respect to stock. So using § 61(a) as a stopgap would only sanction yet another eccentricity: § 301(a) would be held not to cover what its text says it “shall” (the class of distributions made with respect to stock for which no other more specific provision is made), while § 61(a) would need to be applied to what by its terms it should not be (a receipt of funds for which tax treatment is “otherwise provided” in § 301(a)). The implausibility of a statutory reading that either creates a tax limbo or forces resort to an atextual stopgap is all the clearer from the Ninth Circuit’s discussion in this case of its own understanding of the consequences of Miller’s rule: the court openly acknowledged that “imposing an intent requirement creates a disconnect between civil and criminal liability,” 470 F. 3d, at 934. In construing distribution rules that draw no distinction in terms of criminal or civil consequences, the disparity of treatment assumed by the Court of Appeals counts heavily against its contemporaneous intent construction (quite apart from the Circuit’s understanding that its interpretation entails criminal liability for evasion without any showing of a tax deficiency). Miller erred in requiring a contemporaneous intent to treat the receipt of corporate funds as a return of capital, and the judgment of the Court of Appeals here, relying on Miller, is likewise erroneous. IV The Government has raised nothing that calls for affirmance in the face of the Court of Appeals’s reliance on Miller. The United States does not defend differential treatment of criminal and civil cases, see Brief for United States 24, and it thus stops short of fully defending the Ninth Circuit’s treatment. The Government’s argument, instead, is that we should affirm under the rule that before any distribution may be treated as a return of capital (or, by a parity of reasoning, a dividend), it must first be distributed to the shareholder “with respect to... stock.” Id., at 19 (internal quotation marks omitted). The taxpayer’s intent, the Government says, may be relevant to this limiting condition, and Boulware never expressly claimed any such intent. See ibid. (“[I]ntent is... relevant to whether a payment is a ‘distribution... with respect to [a corporation’s] stock’ ”); but see Tr. of Oral Arg. 44 (“[J]ust to be clear, the Government is arguing for an objective test here”). The Government is of course correct that “with respect to... stock” is a limiting condition in § 301(a). See supra, at 424-425. As the Government variously says, it requires that “the distribution of property by the corporation be made to a shareholder because of his ownership of its stock,” Brief for United States 16; and that “ ‘an amount paid by a corporation to a shareholder [be] paid to the shareholder in his capacity as such,”’ ibid,, (quoting 26 CFR §1.301-l(c) (2007); emphasis deleted). This, however, is not the time or place to home in on the “with respect to... stock” condition. Facts with a bearing on it may range from the distribution of stock ownership to conditions of corporate employment (whether, for example, a shareholder’s efforts on behalf of a corporation amount to a good reason to treat a payment of property as salary). The facts in this case have yet to be raked over with the stock ownership condition in mind, since Miller seems to have pretermitted a full consideration of the defensive proffer, and if consideration is to be given to that condition now, the canvas of evidence and Boulware’s proffer should be made by a court familiar with the whole evidentiary record. As a more specific version of its “with respect to... stock” position, the Government says that the diversions of corporate funds to Boulware were in fact unlawful, see Brief for United States 34-37; see also n. 5, supra, and it argues that §§301 and 316(a) are inapplicable to illegal transfers, see Brief for United States 34—37; see also D’Agostino, 145 F. 3d, at 73 (“[T]he 'no earnings and profits, no income’ rule would not necessarily apply in a case of unlawful diversion, such as embezzlement, theft, a violation of corporate law, or an attempt to defraud third party creditors” (emphasis in original)); see also n. 8, supra. The Government goes so far as to claim that “[t]he only rational basis for the jury’s judgment was a conclusion that [Boulware] unlawfully diverted the funds.” Brief for United States 37. But we decline to take up the question whether an unlawful diversion may ever be deemed a “distribution... with respect to [a corporation’s] stock,” a question which was not considered by the Ninth Circuit. We do, however, reject the Government’s current characterization of the jury verdict in Boulware’s case. True, the jurors were not moved by Boulware’s suggestion that the diversions were corporate advances or loans, or that he was using the funds for corporate purposes. But the jury was not asked, and cannot be said to have answered, whether Boulware breached any fiduciary duty as a controlling shareholder, unlawfully diverted corporate funds to defraud his wife, or embezzled HIE’s funds outright. V Sections 301 and 316(a) govern the tax consequences of constructive distributions made by a corporation to a shareholder with respect to its stock. A defendant in a criminal tax case does not need to show a contemporaneous intent to treat diversions as returns of capital before relying on those sections to demonstrate no taxes are owed. The judgment of the Court of Appeals is vacated, and the ease is remanded for further proceedings consistent with this opinion. It is so ordered. A related provision, 26 U. S. C. §7206(1), criminalizes the willful filing of a tax return believed to be materially false. See n. 9, infra. “[T]he elements of § 7201 are willfulness[,] the existence of a tax deficiency,... and an affirmative act constituting an evasion or attempted evasion of the tax.” Sansone v. United States, 380 U. S. 343, 351 (1965). The Courts of Appeals have divided over whether the Government must prove the tax deficiency is “substantial,” see United States v. Daniels, 387 F. 3d 636, 640-641, and n. 2 (CA7 2004) (collecting cases); we do not address that issue here. Although the Code does not “comprehensively define ‘earnings and profits,’ ” 4 B. Bittker & L. Lokken, Federal Taxation of Income, Estates and Gifts ¶ 92.1.3, p. 92-6 (3d ed. 2003) (hereinafter Bittker & Lokken), the “[provisions of the Code and regulations relating to earnings and profits ordinarily take taxable income as the point of departure,” id,., at 92-9. The trial at issue in this case was actually Boulware’s second trial on §§ 7201 and 7206(1) charges, his convictions on those counts in an earlier trial having been vacated by the Ninth Circuit for reasons not at issue here, see 384 F. 3d 794 (2004). In that earlier trial, Boulware was also convicted of conspiracy to make false statements to a federally insured financial institution, in violation of 18 U. S. C. § 371. The Ninth Circuit affirmed Boulware’s conspiracy conviction that first time around, however, so the present trial did not include a conspiracy charge. Judge Thomas went on to say that the Government would prevail even without Miller’s rule because, in his view, Boulware’s diversions were “unlawful,” and the return-of-eapital rules would not apply to diversions made for unlawful purposes. See 470 F. 3d, at 938-939. As noted, the Ninth Circuit holds that §§301 and 316(a) are not to be consulted in a criminal tax evasion case until the defendant produces evidence of an intent to treat diverted funds as a return of capital at the time it was made. See 470 F. 3d 931 (2006) (case below). By contrast, the Second Circuit allows a criminal defendant to invoke §§301 and 316(a) without evidence of a contemporaneous intent to treat such moneys as returns of capital. See United States v. Bok, 156 F. 3d 157, 162 (1998) (“[I]n return of capital eases, a taxpayer’s intent is not determinative in defining the taxpayer’s conduct”). Meanwhile, the Third, Sixth, and Eleventh Circuits arguably have taken the position that §§ 301 and 316(a) are altogether inapplicable in criminal tax eases involving informal distributions. See United States v. Williams, 875 F. 2d 846,850-852 (CA11 1989); United States v. Goldberg, 330 F. 2d 30, 38 (CA3 1964); Davis v. United States, 226 F. 2d 331, 334-335 (CA6 1955); but see Brief for Petitioner 16 (“[T]hese cases can be read to address the allocation of the burden of proof on the return of capital issue, rather than the applicable substantive principles”). We have also recognized that “[t]he legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U. S. 465, 469 (1935). The rule is a two-way street: “while a taxpayer is free to organize his affairs as he chooses, nevertheless, once having done so, he must accept the tax consequences of his choice, whether contemplated or not,... and may not enjoy the benefit of some other route he might have chosen to follow but did not,” Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U. S. 134, 149 (1974); see also id., at 148 (referring to “the established tax principle that a transaction is to be given its tax effect in accord with what actually occurred and not in accord with what might have occurred”); Founders Gen. Corp. v. Hoey, 300 U. S. 268, 275 (1937) (“To make the taxability of the transaction depend upon the determination whether there existed an alternative form which the statute did not tax would create burden and uncertainty”). The question here, of course, is not whether alternative routes may have offered better or worse tax consequences, see generally Isenbergh, Review: Musings on Form and Substance in Taxation, 49 U. Chi. L. Rev. 859 (1982); rather, it is “whether what was done... was the thing which the statute[, here §§301 and 316(a),] intended,” Gregory, supra, at 469. Thus in the period between this Court’s decisions in Commissioner v. Wilcox, 327 U. S. 404 (1946) (holding embezzled funds to be nontaxable to the embezzler), and James v. United States, 366 U. S. 213 (1961) (overruling Wilcox, holding embezzled funds to be taxable income), the Government routinely argued that diverted funds were “constructive distributions,” taxable to the recipient as dividends. See generally Gardner 237 (‘While Wilcox was good law, the safest way to insure that both the corporation and the shareholder would be taxed on their respective gain from the diverted funds was to label them dividends”); 4 Bittker & Lokken ¶ 92.2(7), at 92-23, n. 37. Boulware was also convicted of violating § 7206(1), which makes it a felony “[w]illfully [to] mak[e] and subscribe] any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which [the taxpayer] does not believe to be true and correct as to every material matter.” He argues that if the Ninth Circuit erred, its error calls into question not only his § 7201 conviction, but his § 7206(1) conviction as well. Brief for Petitioner 15-16. Although the Courts of Appeals are unanimous in holding that § 7206(1) “does not require the prosecution to prove the existence of a tax deficiency,” United States v. Tarwater, 308 F. 3d 494, 504 (CA6 2002); see also United States v. Peters, 153 F. 3d 445, 461 (CA7 1998) (collecting cases), it is arguable that “the nature and character of the funds received can be critical in determining whether... §7206(1) has been violated, [even if] proof of a tax deficiency is unnecessary,” 11. Comisky, L. Feld, & S. Harris, Tax Fraud & Evasion ¶ 2.03[5], p. 21 (2007); see also Brief for Petitioner 15-16. The Government does not argue that Boulware’s §§ 7201 and 7206(1) convictions should be treated differently at this stage of the proceedings, however, and we will accede to the Government’s working assumption here that the §§ 7201 and 7206(1) convictions stand or fall together. “A better [method of exempting returns of capital from taxation] could no doubt be devised.” 4 Bittker & Lokken ¶ 92.1.1, at 92-3; see ibid. (suggesting, for example, that “all receipts from a corporation could be treated as taxable income, and a correction for any resulting overtaxation could be made in computing gain or loss when stock is sold, exchanged, or becomes worthless”); see also Andrews, “Out of its Earnings and Profits”: Some Reflections on the Taxation of Dividends, 69 Harv. L. Rev. 1403, 1439 (1956) (criticizing the earnings and profits concept “[a]s a device for separating income from return of capital,” and suggesting that “[distributions which ought to be treated as return of capital [could] be brought within the concept of a partial liquidation by special provision”). Sometimes these facts are not clear, and in certain circumstances a corporation may be required to assume it is profitable. For example, the instructions to IRS Form 1099-DIV provide that when a corporation is unsure whether it has sufficient earnings and profits at the end of the taxable year to cover a distribution to shareholders, “the entire payment must be reported as a dividend.” See http://www.irs.gov/pub/irs-pdf/ il099div.pdf (as visited Feb. 15, 2008, and available in Clerk of Court’s ease file). Another limiting condition is that the diversion of funds must be a “distribution” in the first place (regardless of the “with respect to stock” limitation), see supra, at 429-430, though the Government is content to assume that § 301(a)’s “distribution” language is capacious enough to cover the diversions involved here, and that if Boulware bears the burden of production in going forward with the defense that the funds he received constituted a “distribution” within the meaning of § 301(a), see n. 14, infra, that burden has been met. Nor does the Government dispute that Boulware offered sufficient evidence of his basis and HIE’s lack of earnings and profits. See Brief for United States 34, n. 11. See, e. g., Truesdell v. Commissioner, IRS Non Docketed Service Advice Review, 1989 WL 1172952 (Mar. 15, 1989) (“We believe a corporation and its shareholders have a common objective — to earn a profit for the corporation to pass onto its shareholders. Especially where the corporation is wholly owned by one shareholder, the corporation becomes the alter ego of the shareholder in his profit making capacity.... [B]y passing corporate funds to himself as shareholder, a sole shareholder is acting in pursuit of these common objectives”). We note, however, that although Boulware was not a sole shareholder, the Tax Court has taken it as “well settled that a distribution of corporate earnings to shareholders may constitute a dividend,” and so a return of capital as well, “notwithstanding that it is not in proportion to stockholdings.” Dellinger v. Commissioner, 32 T. C. 1178, Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_appbus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CLAY v. YOUNG. No. 6911. Circuit Court of Appeals, Third Circuit. March 23, 1939. John W. Griggs, of Hackensack, for appellant. Charles H. Roemer, of Paterson, for appellee. Before BIGGS, MARIS, and BUF-FINGTON, Circuit Judges. PER CURIAM. The appeal at bar is without merit. Accordingly the decree by the District Court granting the discharge of the bankrupt is affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_appel1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). MARSMAN v. COMMISSIONER OF INTERNAL REVENUE. No. 6535. United States Court of Appeals Fourth Circuit. Argued April 13, 1953. Decided June 3, 1953. Rehearing Denied July 7, 1953. Herbert W. Clark, San Francisco, Cal. (Nelson T. Hartson, Seymour S. Mintz, William T. Plumb, Jr., Washington, D. C., Leon F. De Fremery, Clarence E. Musto, Richard J. Archer, Morrison, Hohfeld, Foerster, Shuman & Clark, San Francisco, Cal., and Hogan & Hartson, Washington, D. C., on the brief), for petitioner. Louise Foster, Special Asst, to the Atty. Gen. (H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack and Plelen Goodner, Special Assts. to the Atty. Gen., on the brief), for respondent. Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges. SOPER, Circuit Judge. This petition to review the decision of the Tax Court presents the questions whether Mary A. Marsman, a citizen of the Commonwealth of the Philippines, was a resident of the United States during the period from September 22, 1940 to December 31, 1941, and if so, whether she is liable for United States income tax on certain undistributed net income held on December 31, 1940 by La Trafagona, a Philippine corporation, wholly owned by her. If these questions are resolved against the taxpayer, it is also necessary to determine (1) whether the tax should be based on one-half of the entire amount of the undistributed income of La Trafagona on December 31, 1940, or only so much thereof as was acquired after September 22, 1940, when she became a resident of the United States; and (2) whether the taxpayer, being on a cash basis, is entitled to a credit against her United States income tax for 1941 in the amount of the income taxes paid by her to the Philippine Islands in 1941 for the years 1938 and 1940. The Tax Court found that Mrs. Mars-man was a resident of tile United States between September 22, 1940 and December 31, 1941, the tax periods involved herein, and that she was taxable on the undistributed income of La Trafagona for the entire year 1940 rather than for the period from September 22 to December 31, 1940, and that no pari of the income taxes paid to the Philippine government in 1941 was available to her as a credit against the United States income taxes due by her for that year. The evidence on the controlling issues of residence may be summarized as follows: The taxpayer, a native of Scotland, and her present husband, J. H. Marsman, a native of Holland, became residents of the Philippines prior to 1920 and were married there in that year. They were naturalized in the Philippines in 1934 and became citizens of the Commonwealth in 1935 and remained citizens during the taxable period. During these years each of them controlled large corporate business enterprises through the medium of a wholly owned Philippine holding company, that is, La Trafagona, owned by the taxpayer, and El Emprendedor, owned by her husband. They maintained two large and well furnished houses in the Philippines, one in Manila and another at Baguio, which were adequately staffed and always open for occupation. In 1939 and 1940 they made extensive improvements in these residences and acquired new furnishings for them. In 1939 they planned to place their daughter Anne in school in England or on the continent of Europe, and on April 28 of that year, the three came to San Francisco partly for this purpose and partly to combine a business trip to the United States with a vacation in Europe. After their arrival Mr. Marsman, whose wide connections kept him well informed of the threat of war, concluded that it was not advisable to take his family to Europe and so he left them in California and flew to Europe on a business trip. He returned to San Francisco in September and shortly thereafter returned to Manila and did not return to the United States until December, 1939. The husband and wife opened a joint account with a stockbroker in San Francisco in 1939 and Mrs. Marsman also opened such an account in her own name. When the family first arrived in San Francisco in April, 1939 they took up residence in a hotel, accompanied by several servants. In June, 1939 Marsman bought a house for $30,000 and furnished it for use as a residence by the daughter while in attendance at school, and persons were engaged to care for her and the residence during her parents’ absence. In 1943 the house was sold and another was purchased in Los Altos, California. The daughter was enrolled in a private school in San Francisco in September, 1939, completed her first year, and left for Manila in July, 1940. Her parents had preceded her in the previous April. They bought a yacht in California for $75,000 in 1940 and engaged a crew to sail the vessel to the Philippines in April. The tax period under consideration began on September 22, 1940, when Mrs. Marsman and the daughter returned to San Francisco by air, and the child was again entered in school. Marsman remained in Manila except for short business trips and a visit to' the United States from June to September, 1941, when he returned to Manila. In December, 1941 he flew to Hong Kong and was captured by the Japanese. He escaped and came to the United States in 1942. He was not a resident of the United States at any time during the tax period which ended December, 1941. Mrs. Marsman remained in the United States continuously from September 22, 1940 until 1945. She and her daughter were admitted on the occasion of their first visit in April, 1939 for “a temporary period, of six months.” In October, 1939 an extension of the temporary stay was granted for six months. On September 22, 1940, the mother and daughter were admitted for “a temporary period of ten months.” On July 1, 1941 an. extension for one year was requested for the reason that conditions abroad were still in an unsettled state; and in 1942, 1943 and 1944 additional extensions were requested and granted because of the war. In 1945 a one year extension was denied. On February 7, 1948 the taxpayer was allowed to enter the United States through Canada as a permanent British immigrant. Mrs. Marsman denied that she formed the intent to remain in the United States during the taxable period, but there is nevertheless abundant evidence that her extended stay in this country was caused by war conditions and the desire to avoid the danger that would have attended a return to the Philippines. The Marsmans were acquainted with persons of importance in many parts of-the world and through their contacts were led to believe that there was grave danger of war in the Orient in 1940. Correspondence between the husband in Manila and the wife in San Francisco in the fall of 1940 and thereafter indicates his fear of war, his acquaintance with the' preparations of the United States in the Philippines to meet the emergency, and his satisfaction that his wife was in a safe place. Her letters to him frequently expressed her desire to return to her home, even as late as October, 1941, as well as her sense of obligation to the Marsman employees in the Philippines, but she nevertheless yielded to his wishes and his advice and was herself convinced of the danger, and in October, 1940, advised relatives in Canada to stay away from Manila. In view of these facts we are of the opinion that the Tax Court was justified in finding that on September 22, 1940 Mrs. Marsman “had a definite intent to remain in the United States until such time as the danger of war in the Orient subsided”; and we do not think that the issuance of certificates for a stay in this country for temporary periods, or the presence of her daughter at school in San Francisco, or the strong desire of the taxpayer to return to her established home in the Philippines as soon as it should become safe for- her to do so, are inconsistent with the court’s conclusion. The case is governed by Treasury Regulations 111 § 29.211-2 where it is laid down that one who comes to the United States for a purpose of such a nature that an extended stay may be necessary for its accomplishment, and to that end makes his home temporarily in the United States, becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. The weight to be given to this Regulation in considering a question of residence in the application of the income tax law, was discussed by this court under somewhat similar factual conditions in Commissioner of Internal Revenue v. Nubar, 4 Cir., 185 F.2d 584, and Commissioner of Internal Revenue v. Patino, 4 Cir., 186 F.2d 962. We conclude that the taxpayer was taxable as a resident alien during the taxable years. We come then to the questions relating to the inclusion of the undistributed net income of La Trafagona in the taxable income of Mrs. Marsman for the year 1940, and her claim to a credit against her United States income tax for 1941 of the amount of the income taxes paid by her to the Philippine government in 1941. The undistributed net income of La Trafagona for the entire year 1940 was $130,357.04, when computed under the provisions relating to “undistributed Supplement P net income” contained in Section 335 of the Internal Revenue Code, 26 U.S.C.A. § 335. The amount is not in dispute and the controversy is as to what portion thereof should be included in the taxable income, the taxpayer contending that the income acquired by the corporation prior to September 22, 1940 is not taxable in the United States, while the government contends that the income of the corporation for the entire taxable year was taxable to Mrs. Marsman. The statute relied on is Section 337 of the Internal Revenue Code, 26 U.S.C.A. § 337, which provides that the undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of citizens or residents of the United States who are shareholders thereof in the manner and to the extent set forth in the Supplement. Section 331 provides that a foreign corporation is such a holding company, if at least 50 per cent of its gross income (as defined in Section 334(a) is of the character described in Section 332, and if at any time during the taxable year more than 50 per cent in value of its outstanding stock is owned by not more than five individuals or residents of the United States who are called “United States group”. It is not disputed that La Trafagona meets these requirements both as to the nature of its income and the ownership of its stock. The question is as to the interpretation of Section 337 which specifies the amount of the undistributed Supplement P net income which shall be included in the gross income, as follows: “(a) General rule. The undistributed Supplement P net income of a foreign personal holding company shall be included in the gross income of the citizens or residents of the United States * * * who are shareholders in such foreign personal holding company (hereinafter called ‘United States shareholders’) in the manner and to the extent set forth in this Supplement. “(b) Amount included in gross income. Each United States shareholder, who was a shareholder on the day in the taxable year of the company which was the last day on which a United States group (as defined in section 331(a)(2) existed with respect to the company, shall include in his gross income, as a dividend, for the taxable year in which or with which the taxable year of the company ends, the amount he would have received as a dividend if on such last day there had been distributed by the company, and received by the shareholders, an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable year as the portion of such taxable year up to and including such last day bears to the entire taxable year.” It will be seen that this section requires every “United States shareholder” of a foreign personal holding corporation to include in his gross income certain undistributed net income of the corporation if he was a stockholder on the last day in the tax year when the United States group was in existence. In this case the group consisted of Mrs. Marsman alone and she remained the sole shareholder until the last day of the year, so that she is within the definition of shareholder contained in the statute. As such she is required to include in her gross taxable income the amount she would have received as a dividend upon the last day of 1940 if on that day there had been distributed to her as the sole stockholder “an amount which bears the same ratio to the undistributed Supplement P net income of the company for the taxable .year as the portion of such taxable year up to and including such last day bears to the entire taxable year.” Since the last day in this case is the last day of the year 1940, Mrs. Marsman would be required to include in her- gross income the Supplement P net income of La Trafagona for the entire year, if the language.of the section is to be given a strictly literal interpretation. We do not think, however, that the statute should be applied literally and without reference to the purpose for which it was admittedly enacted. The provisions of the statute now set out in Sections 331 to 340 of the Internal Revenue Code, 26 U.S.C.A. §§ 331-340, as Supplement P — Foreign Personal Holding Companies, were first enacted in Title II of the Revenue Code of 1937. They were passed by Congress to prevent the avoidance of income tax by taxpayers in the United States which was accomplished by placing-income of the taxpayer in the hands of a foreign holding company that was itself not subject to the jurisdiction of the United States. The Ways and Means Committee of the House of Representatives made this plain in its report to the House (IT.R.Rep. No. 1546, 75th Cong., 1st Sess. 1937), when it said: “* * * The- evidence presented to the Joint Committee has shown that foreign personal holding companies have afforded one of the most flagrant loopholes for tax avoidance. The use of such corporations has greatly increased within the last few years. Unless- immediate preventative measures are taken increased loss of revenue will be suffered in the future.” The statute was obviously designed to reach the income of persons who were subject to the tax laws of the United States but were eluding taxation through the foreign holding company device. Accordingly Section 331(a)(2) provided that the stock ownership requirement of a foreign personal holding company should be the ownership of 50 per cent in value of its outstanding stock by not more than five individual citizens or residents of the United States, who are called “United States group” in- Section 331 and “United States shareholders” in Section 337; and Section 337 provided that the undistributed Supple-' ment P income of such a corporation must •be included in the gross income of such shareholders. Thereby the distinction between the corporate entity and its controlling United States shareholders was wiped out for the purposes of income taxation and the tax avoidance device of placing undistributed taxable income in a corporation outside the United States was frustrated. But Congress did not intend to reach the income of persons, such as alien nonresidents, which was not subject to the laws of the United States when it was received by them or by a holding company subject to their control. If that part of the income of Mrs. Marsman, now sought to be taxed, which was earned prior to September 22, 1940, had been received by her instead of by her holding company prior to that date, no one would contend that it was subject to taxation by the United States when she became a resident of this country; and it is not reasonable to suppose that Congress intended that the statute should produce such an unlooked for result. The government’s answer to this view is that the taxpayer and the holding corporation are separate and distinct entities in the eye of the law, and hence the income of La Trafagona prior to September 22, 1940 was not the taxpayer’s income, when received, but became such only after she acquired a residence in this country and became subject to the provisions of the statute which converted undistributed income of a holding company into the income of the shareholders as of the last day of the year. We cannot agree with this analysis of the problem, for it not only extends the statute far beyond its announced purpose, but .it is inconsistent in itself in that it treats the taxpayer and the corporation as distinct legal persons during the first part of the year but as one and the same person after the taxpayer acquired her residence in the United States. If the government’s contention is sound, an alien? who controls a foreign holding company with undistributed income and becomes a resident of the United States on the last day of the year, and hence is a taxpayer of the United States for only a single day, would he subject to income tax upon the income for the entire year. We cannot attribute to the Congress of the United States the intent to accomplish such an extraordinary result. A more reasonable approach has been taken by the Tax Court in the analogous situation which occurs when there is a change in the status of a taxpayer during the tax year, as where a taxpayer, who is exempt from income tax at the beginning of the year, loses the exemption in the course of the twelve months. Thus iu Economy Savings & Loan Co. v. Com’r, 6 Cir., 158 F.2d 472, a building and loan association, which was exempt from taxation because its business was substantially confined to making loans to members, lost its exemption during the year by changing substantially all of its business to lending money to depositors. Although the statute made no specific provision for such a contingency, ilie court held that the income for the portion of the year prior to the change of business operations was exempt but that the income for the remainder of the year was subject to taxation. See also Royal Highlanders v. C. I. R., 1 T.C. 184, reversed on other grounds, 8 Cir., 138 F. 2d 240; Reserve Loan Life Ins. Co. of Tex. v. C. I. R., 4 T.C. 732. No reason is suggested, other than the insistence upon a literal interpretation of the statute regardless of results, why a similar procedure should not be followed in the pending case. Returns for a fractional part of the tax year are recognized by Section 48(a) of the Internal Revenue Code, 26 U.S.C.A. § 48(a). Such a return was required of the taxpayer for that part of the year which began when she took up her residence in this country; and if the taxpa3>-er is permitted to limit her report of the undistributed income of La Trafagona to the amount received by that corporation during the last 101 days of 1940, she will pay the tax on all the income received during the period when she was subject to the tax laws of the United States and the purpose of the statute will be effectuated. This view is in accord with Ihe rule of interpretation enunciated in United States v. Amer. Trucking Ass’ns, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, where the court declined to interpret literally the word “employee” as found in the Motor Carriers Act, because it would place upon the Interstate Commerce Commission, contrary to the settled practice of Congress, the duty of regulating the qualifications of a large number of employees who had nothing to do with safety of operation. The court said, 310 U.S. at pages 543-544, 60 S.Ct. at page 1063: “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’ ” The last question for decision relates to the right of the taxpayer to a credit against her United States income tax for the year 1941 of the amount of her Philippine income taxes for the years 1938 and 1940;A paid by her in 1941. In the last mentioned year, the taxpayer, her husband and daughter, filed joint Philippine income tax returns for the years 1938-41, and paid to the Philippine government 265,812.87 pesos for a deficiency in income tax for the year 1938, and 198,699.12 pesos for income tax for the year 1940. The taxpayer bases her claim to the credit upon the literal unambiguous wording of Section 131 of the Internal Revenue Code, as amended by the Revenue Act of 1942, 26 U.S.C.A. § 131, as follows: “Sec. 131(a) Allowance of Credit. — ■ If the taxpayer chooses to have the benefits of this section, the tax imposed by this chapter, except the tax imposed under section 102 or section 4S0, shall be credited with: ****** “(2) Resident of United States. — ■ In the case of a resident of the United States, the amount of any such taxes paid or accrued during the taxable year to any possession of the United States; and * * “Section 131(b) Limit on Credit.— The amount of the credit taken under this section shall be subject to each of the following limitations: “(1) The amount of the credit in respect of the tax paid or accrued to any country shall not exceed the same proportion of the tax against which such credit is taken, which the taxpayer’s net income from sources within such country bears to his entire net income, in the case'of a taxpayer other than a corporation, * * The taxpayer contends that the full amount of the Philippine income taxes paid by her in 1941 is available to her as a credit against her United States income tax for that year because the payments fell clearly within the express terms of Section 131(a)(2) subject only to the limitation contained in Section 131(b) which in this case means that the amount, of the credit shall not exceed the same proportion of the United States tax as her taxable income derived from the Philippines bore to her entire income. The Tax Court denied the credit as to 1938 entirely and allowed the credit as to 1940 only as to such portion of the Philippine income taxes as were allocable to the period between September 22 and December 31, 1940, during which the taxpayer was a resident of the United States. In so doing the Tax Court departed from its insistence upon the literal meaning of the applicable statute which it displayed in interpreting Section 337 of the Internal Revenue Code as shown above, and held that Section 131 should be so construed as to effect the Congressional purpose to allow a credit of taxes paid to other countries so as to lift the burden of double taxation from the shoulders of the taxpayer. We are in accord with this interpretation. The Supreme Court has held that the primary purpose of the tax credit, which was first authorized by Section 222 of the Revenue Act of 1918 and is now found in Section 131, was to mitigate the evils of double taxation. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 52 S.Ct. 275, 76 L.Ed. 587; American Chicle Co. v. United States, 316 U.S. 450, 62 S.Ct. 1144, 86 L.Ed. 1591; Hubbard v. United States, Ct.Cl., 17 F.Supp. 93, certiorari denied 300 U.S. 666, 57 S.Ct. 508, 81 L.Ed. 873. This, purpose will not be served and double taxation will not be avoided by allowing the credit now sought by the taxpayer because the 1938 and 1940 Philippine income taxes, paid by the taxpayer in 1941 were imposed upon income which was never subjected and could not be subjected to the United States income taxes for the reason that the taxpayer was a nonresident of the United States until September 22, 1940 and the Philippine income during these two. years was derived from sources outside the United States. To allow the credit under such circumstances would be to give preferred status to a citizen of the Philippines, as compared with a citizen of the United States, and it is not reasonable to suppose that such a result was within the contemplation of Congress. Other cognate sections of the taxing statutes support this construction of Section 131. It is provided in Section 252 of the Internal Revenue Code, 26 U.S.C.A. §; 252, that an individual, such as the taxpayer, who was a citizen of a possession of' the United States but not otherwise a citizen of the United States, shall be taxed only on income derived from the United States, and that the tax must be computed. as in the case of other persons who are taxable only on income derived from the United States. These other persons are non-resident aliens who by the terms of Section 216 of the Code are expressly denied tax credits based on taxes paid to foreign countries and possessions of the United States. Consequently, if the taxpayer had had income from sources within the United States in 1938 or in 1940 prior to September 22, she would have been allowed no credit for the Philippine taxes paid for these years. In view of these provisions of the tax statutes relating to non-residents it would be anomalous to hold that when the taxpayer became a resident of the United States in 1940 and paid in 1941 overdue Philippine income taxes for 1938, she became entitled to a tax credit under Section 131 which could not have been allowed if the tax had been paid in the year when it was due and payable. The taxpayer relies on the decision of this court in Helvering v. Campbell, 4 Cir., 139 F.2d 865, where we held that a United States citizen residing in the Philippine Islands was entitled to a credit for the entire Philippine income tax and not merely to a credit for the taxes paid on a portion of the income. But this decision related not to the right to a credit for Philippine taxes paid during the year but to the amount of the credit to be allowed, and we do not regard it as controlling in the present case. The decision of the Tax Court will be affirmed as to the question of residence and the question of the proper tax credit to be allowed, and will be reversed as to the amount of the undistributed income of La Trafagona to be included in the income of the taxpayer subject to the United States income tax, and the case will be remanded for further proceedings in accordance with this opinion. Reversed and remanded. . It is conceded that the taxpayer’s income under Philippine law is community property and that she is chargeable for only one-half of the undistributed property of La Trafagona. . Section 29.211-2 of the Regulations also provides that an alien whose stay is limited to a definite period by the immigration laws is not a resident in the absence of' exceptional circumstances; and Section 29.211 — 4 states that an alien is presumed to be a non-resident but that the presumption may be overcome by proof that his stay in this country has been of such an extended nature as to constitute Mm a resident. It is evident, however, that these provisions do not conflict with the conclusion that has been reached. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations August 28, 1958. No. 1, Misc. Aaron et al. v. Cooper et al., Members of the Board of Directors of the Little Rock, Arkansas, Independent School District, et al. On application for vacation of the order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate and for a stay of the order of the United States District Court for the Eastern District of Arkansas and for such other orders as petitioners may be entitled to. Argued August 28, 1958. Having considered the oral arguments, the Court is in agreement with the view expressed by counsel for the respective parties and by the Solicitor General that petitioners’ present application respecting the stay of the mandate of the Court of Appeals and of the order of the District Court of June 21, 1958, necessarily involves consideration of the merits of the Court of Appeals decision reversing the order of Judge Lemley. The Court is advised that the opening date of the High School will be September 15. In light of this, and representations made .by counsel for the School Board as to the Board’s plan for filing its petition for certiorari, the Court makes the following order: 1. The School Board’s petition for certiorari may be filed not later than September 8, 1958. 2. The briefs of both parties on the merits may be filed not later than September 10, 1958. 3. The Solicitor General is invited to file a brief by September 10, 1958, and to present oral argument if he is so advised. Thurgood Marshall argued the cause for petitioners. With him on the brief were Wiley A. Branton, Jack Green-berg and William Coleman, Jr. Richard C. Butler argued the cause for respondents. With him on the brief was A. F. House. Solicitor General Rankin, at the invitation of the Court, argued the cause for the United States, as amicus curiae, urging that the relief sought by petitioners should be granted. With him on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer. 4. The Rules of the Court requiring printing of the petition, briefs, and record are dispensed with. 5. Oral argument upon the petition for certiorari is set for September 11, 1958, at twelve o’clock noon. 6. Action on the petitioners’ application addressed to the stay of the mandate of the Court of Appeals and to the stay of the order of the District Court of June 21, 1958, is deferred pending the disposition of the petition for certiorari duly filed in accordance with the foregoing schedule. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_state	36	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". HYBUD EQUIPMENT CORP.; Budoff Iron & Metal Co.; Glenwillow Landfill, Inc.; Waldo A. Sober, Jr.; J. P. Hawley Sanitation, Inc. & G. G. Kovach, Plaintiffs-Appellants, v. CITY OF AKRON, OHIO; John S. Ballard; Ray Kapper; Elsie Reaven; James R. Williams; Vincent Ciraco; Robert Goehler; Reginald Brooks; Kathleen Griessing; Robert Otterman; Mickey Eritano, Jr.; John Frank; Don Plusquellic; William C. Grimm; Robert Edwards; County of Summit, Ohio; Mark Ravenscraft; Ted Coles; Don Stephens; Ohio Water Development Authority, Defendants-Appellees. No. 80-3121. United States Court of Appeals, Sixth Circuit. Argued Oct. 8, 1980. Decided July 17, 1981. William C. Brashares, Cladouhos & Bras-hares, Washington, D. C., Joseph E. Abdenour, John L. Wolfe, Hershey & Browne, Akron, Ohio, for plaintiffs-appellants. Eben G. Crawford, William H. Baughman, Jr., Cleveland, Ohio, John E. Holcomb, William F. Spicer, Asst. Dir. of Law, City of Akron, Steven J. Schwartz, Timothy Hartman, Asst. Pros. Attys., Akron, Ohio, James L. Bickett, Cuyahoga Falls, Ohio, for defendants-appellees. William M. Bradner, Jr., Terry A. Thompson, Chadbourne, Parke, Whiteside & Wolff, New York City, for amicus curiae American Paper Institute. Richard J. Lazarus, Dept, of Justice, Washington, D. C., for U. S. A. amicus curiae. Before MERRITT and BOYCE F. MARTIN, Jr., Circuit Judges; GORDON, Senior District Judge. The Honorable James F. Gordon, Senior District Judge, United States District Court for the Western District of Kentucky, sitting by designation. MERRITT, Circuit Judge. In the late 1960s, the City of Akron was confronted by the need to develop new sources of energy and to find alternative methods of waste disposal. In an attempt to alleviate both problems, the City decided to construct a $55 million energy recycling plant, a facility that generates energy in the form of steam heat from the incineration of trash. Plaintiff-appellants seek injunctive relief against several actions undertaken by the City and other defendants to guarantee the feasibility of the plant, alleging that those actions violate the federal antitrust laws and the due process, interstate commerce and takings clauses of the Constitution. Underlying the legal issues are related and sometimes conflicting national policies respecting resource and energy conservation, environmental protection and energy production. After reviewing the questions presented, the District Court entered judgment for the defendants on all claims. Glenwillow Landfill, Inc. v. City of Akron, 485 F.Supp. 671 (N.D.Ohio 1979). The issues presented on appeal are whether the City has violated either federal constitutional provisions or the antitrust laws by adopting a city ordinance monopolizing garbage collection and disposal and eliminating competition in the market for recyclable wastes. We find no federal constitutional or statutory violation and accordingly affirm. I. STATEMENT OF THE CASE A. The Akron Energy Recycling Plant and the Ordinance in Question In the late 1960s, Akron’s solid waste disposal landfills were approaching capacity, and a new landfill operating in violation of EPA standards was immediately challenged in court. In addition, Ohio Edison, which supplied steam heat to businesses in downtown Akron, sought to abandon the Akron market. The City began to search for an alternative energy supply. After a period of study, the City decided to develop the solid waste recycling plant, but the revenue bonds issued to finance the project proved unmarketable. The City turned to the Ohio Water Development Authority, a state agency, for financial assistance. It agreed to finance the project but later discovered that it could not secure the bonds from its general fund. At this juncture, in 1976, the firm of Dillon, Reed & Co. was hired to study and possibly underwrite the bonds. To improve the marketability of the $46 million bond issue, the underwriters imposed the requirement that an agreement be executed between the Water Authority, Summit County (in which Akron is situated), and the City of Akron. Among the covenants included in the agreement was the requirement that the City enact an ordinance that would guarantee a supply of solid waste for the plant. This is the ordinance challenged here. It was passed by the City in October 1976. Together the agreement and the ordinance prohibit the establishment of alternative waste disposal sites, require all garbage collectors within the City and County to deposit at the plant all waste “acceptable for disposal” at the facility, and require all collectors to pay a “tipping fee” when they deposit waste ah the plant. Collectors violating the ordinance could lose their licenses and be subject to criminal penalties. These enactments were considered necessary for the financial success of the plant, for the defendants and the underwriters feared that without such restrictions it would be impossible to guarantee a sufficient waste supply from which a steady source of energy for potential customers could be generated. Some materials are not deposited at the plant, such as recyclables presorted at the source that never enter the waste stream, and materials judged unacceptable for disposal at the facility (e. g., hazardous wastes and solid matter that the plant is unequipped to incinerate). The wastes “acceptable for disposal” at the facility consist of two types of solid materials — those that are incinerated to generate steam, and those (primarily ferrous) that cannot be burned but can be recovered and recycled. Some non-metal recyclable materials, such as paper products, which prior to the enactment of the ordinance were separated out and sold by the collectors, now will be incinerated instead to generate steam. Concern over the decision to destroy recyclable paper products caused the American Paper Institute to file an amicus brief challenging the legality of the ordinance. According to this plan, revenue is earned by the plant in three ways: from the generation and sale of energy, from the tipping fees paid by collectors disposing of waste at the facility, and from the sale of recyclables recovered at the facility. The City has agreed with Teledyne National, the private company that has contracted to operate the plant that Teledyne may retain one-half of the revenues earned from sale of recovered materials. The plan established in the agreement and ordinance interferes with the previous operations of the plaintiffs, landfill operators and collectors of solid waste in the County. Previously Hybud Equipment Corp. collected waste in the City, charging customers a fee for the service. The waste was hauled to a “transfer station” run by an affiliated company, Budoff Iron & Metal Corp., where recyclable materials were separated out and sold. Hybud paid rebates to its customers from the payments it received from selling the recyclables. The waste that could not be sold was hauled to landfills where Hybud paid a tipping fee to deposit it. Hybud in effect paid customers for the valuable recyclables it received from them while charging them for the service of hauling away nonrecyclable waste. The other plaintiffs are other waste collectors in the City and County and operators of landfill disposal sites that received a significant portion of their income from tipping fees paid by collectors hauling waste originating in the City and the County. The ordinance and agreement interfere with plaintiffs’ businesses in three ways. First, the income of the landfills is substantially reduced because they no longer receive waste (except materials unacceptable at the plant) originating in the City. Second, the collectors are required to haul waste to the plant and pay its fixed tipping fee. This eliminates the competition among waste disposal sites, grants the plant the power to fix tipping fees unrestrained by the forces of a competitive market, and deprives collectors of their former freedom to shop among disposal sites and to patronize those supplying services at minimal combined tipping and transportation costs. Finally, the business of recovering and selling valuable recyclables is removed from collectors such as Hybud. Instead of receiving payments from the sale of the recyclables they collect, haulers are required to deposit them at the plant and pay a tipping fee, as with the nonrecyclable solid waste deposited there. The plant treats the recyclables as it wishes, either burning them to create energy or separating them out and selling them. Either way, the revenue generated from the use of the recyclables is retained by the plant. Plaintiffs do not challenge the establishment of the plant. The construction of an additional facility to compete in the waste disposal industry, they acknowledge, violates no law. Rather, they challenge the additional actions taken by the defendants to eliminate competition in the industry and to make the plant the sole waste disposal facility in the Akron area. Plaintiffs argue that the economic viability of the plant may not be insured at the price of destroying competition. They seek an injunction prohibiting enforcement of the ordinance and a declaration that the ordinance and other concerted activities among the defendants are illegal. Defendants concede that the agreement and the ordinance were enacted upon the urgings of the project’s underwriters in order to guarantee the project’s financial success. The defendants as well as the United States Department of Justice in an amicus brief filed on behalf of the Environmental Protection Agency and the Department of Energy argue, however, that the anticompetitive steps taken to make the plant feasible accord with national energy and environmental policy. B. Akron’s Authority to Build the Plant and Restrict Competition Under State Law Akron exercises its municipal powers under a grant of municipal home rule found in Ohio’s Constitution. Article XVIII, § 3 reads: Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. Section 7 of Article XVIII authorizes municipalities to adopt charters for their government and, “subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.” Ohio case law holds that these state constitutional provisions “pass the sovereign power of municipal government... directly from the people of the state to the people of the city” and has the effect of delegating a part of the state’s “sovereignty” to the city, State ex rel Toledo v. Lynch, 88 Ohio St. 71, 102 N.E. 670 (1913), including the power to establish a municipal monopoly for the collection and incineration of garbage. State ex rel. Moock v. Cincinnati, 120 Ohio St. 500, 166 N.E. 583, cert. denied, 280 U.S. 578, 50 S.Ct. 31, 74 L.Ed. 628 (1929). In addition, Ohio statutes delegate to municipalities the authority to regulate the disposal of garbage. Ohio Rev.Code § 715.-43 grants municipalities the authority to “provide for the collection and disposition of sewage, garbage, ashes, animal and vegetable refuse, dead animals, and animal offal, and may establish, maintain, and regulate plants for the disposal thereof.” Similarly, Ohio Rev.Code § 717.01(C) empowers municipalities to “[e]rect a crematory or provide other means for disposing of garbage or refuse.... ” The District Court also found authority for the City to engage in the challenged activities in the legislation granting the Water Authority power to develop solid waste treatment facilities. Ohio Rev.Code § 6123.03 states that the Water Authority is established to protect health and aesthetic values through efficient methods of “disposal... or recovery of resources from solid wastes.” The Authority is authorized to construct and maintain solid waste projects or to make agreements for their maintenance. The Authority is empowered to make loans and grants and issue bonds to carry out the statutory purposes and to guarantee the feasibility of projects developed under this statute. Ohio Rev.Code §§ 6123.03, 6123.04, 6123.06 et seq. The statute authorizes the Water Authority to “[m]ake and enter into all contracts and agreements and execute all instruments necessary or incidental to the performance of its duties and the execution of its powers under Chapter 6123...,”§ 6123.04(1), and to “[d]o all acts necessary or proper to carry out the powers expressly granted in Chapter 6123....” § 6123.04(P). The District Court found that pursuant to this statutory scheme the state legislature had authorized the challenged anticompetitive activities. II. THE TAKINGS AND DUE PROCESS CLAUSE QUESTIONS Control of local sanitation, including garbage collection and disposal, like fire and police protection, is a traditional, paradigmatic example of the exercise of municipal police powers reserved to state and local governments under the Tenth Amendment. Ordinances regulating garbage collection and disposal are rationally related to a matter of legitimate local concern. Courts in literally hundreds of reported cases have upheld the authority of local governments to monopolize and control local garbage collection by eliminating or restraining competition among private collectors. See Annots., Validity of Statutory or Municipal Regulations as to Garbage, 15 A.L.R. 287 (1921); 72 A.L.R. 520 (1931); 135 A.L.R. 1305 (1941). If any area of the law can be said to be well settled, this one is. In three pertinent cases, two at the turn of the century in the United States Supreme Court, California Reduction Company v. Sanitary Reduction Works, 199 U.S. 306, 26 S.Ct. 100, 50 L.Ed. 204 (1905); Gardner v. Michigan, 199 U.S. 325, 26 S.Ct. 106, 50 L.Ed. 212 (1905), and one in the twenties in the Ohio Supreme Court, State ex rel. Moock v. City of Cincinnati, 120 Ohio St. 500, 166 N.E. 583, cert. denied, 280 U.S. 578, 50 S.Ct. 31, 74 L.Ed. 628 (1929), three cities, San Francisco, Detroit and Cincinnati, each decided to change local garbage collection and disposal practices by ordinance. Each established a reduction plant or “crematory” and gave one private company a monopoly over garbage collection. The ordinances put existing private garbage collectors out of business; they prohibited existing private collectors from competing with the private contractor who was given the municipal monopoly. In each case the private collectors claimed that the change constituted a taking without just compensation and an interference with established rights of private property, the right to compete in the market place, in violation of substantive due process under the Fourteenth Amendment. In the Cincinnati case the private contractors also argued that the city had not been delegated the authority under the state constitutional home rule provisions to restrain trade and that the ordinance violated the garbage collector’s right “to private property, and amounted to a special privilege and the creation of a monopoly in favor of the city’s public contractor.” 120 Ohio St. at 507, 166 N.E. 583. After noting that “[m]any of the questions involved in municipal sanitation have proved to be difficult of solution” — questions “unsolved by experience or science”— the United States Supreme Court held that the creation of such monopoly “cannot be properly regarded, within the meaning of the Constitution, as a taking of private property for public use, without compensation, simply because such garbage and house refuse may have had, at the time of its destruction, some element of value for certain purposes.” California Reduction, supra, 199 U.S. at 320-21, 323, 26 S.Ct. at 104—105. As support for this result the Court quoted from Sedgwick’s Treatise: In Sedgwick’s Treatise on Statutory and Constitutional Law the author says that “the clause prohibiting the taking of private property without compensation is not intended as a limitation of those police powers which are necessary to the tranquillity of any well-ordered community, nor of that general power over private property which is necessary for the orderly exercise of all governments. It has always been held that the legislature may make police regulations, although they may interfere with the full enjoyment of private property, and though no compensation is made.” Id. at 324r-25, 26 S.Ct. at 105-06. The Supreme Court then went on to hold, “according to well-settled principles,” that the concept of substantive due process— then in its heyday — did not protect the property rights of the garbage collectors although the cities might have adopted a less restrictive solution to the problem. “If it be said that the city might have adequately guarded the public health and at the same time saved the property rights,” the Court concluded, “the answer is that the city evidently thought otherwise, and we cannot confidently say that its constituted authorities went beyond the necessities of the case.” Gardner, supra, 199 U.S. at 333, 26 S.Ct. at 109. The Ohio case came to the same conclusion: [W]e do not enter upon a virgin field, since the overwhelming weight of authority, both state and federal, upholds the municipal right to regulate, supervise, and control sanitation, including the collection and disposal of garbage, under the police power of the city and state; and this may be done, notwithstanding the fact that garbage may have animal food value and the authority for such collection and disposal has been exclusively confided to a single person or agency. 120 Ohio St. at 507-08, 166 N.E. 583. Akron is an Ohio home-rule city, like Cincinnati, and on the basis of these three cases and the general law in this area we are satisfied that the city has not violated the takings or due process clause of the United States Constitution or the state home rule provisions by setting up a new reduction, “thermal transfer,” or “energy recycling” plant and by requiring that local garbage collectors bring all their garbage to the plant, including recyclable, or marketable, non-noxious garbage. The plaintiffs and the American Paper Institute argue, however, that the increased value of wastes and the City’s appropriation of that value render the old cases anachronisms that should be set aside. They argue that changed economic circumstances and heightened environmental concern make separating and selling such recyclable wastes as metal, paper, and cardboard more feasible now than in the past. They point out that there now exist competitive markets for recyclable wastes. They argue that Akron’s purpose in acquiring a monopoly over garbage is not public health, as was the ■ purpose in the old cases, but rather making its energy plant more profitable by insulating it from competition for raw materials. A monopoly imposed for that purpose, they argue, is neither necessary nor efficient. The old cases are not anachronisms. They are not distinguishable on any of these grounds. The solid waste disposal problem is as serious today for cities as in the past, perhaps more serious. Landfill areas are running out and causing serious air and water pollution and aesthetic problems. The record demonstrates that this is the problem that caused Akron — a heavily industrial area — to plan and build its energy recycling plant. Nor can the old cases be distinguished because of changed technology. The Supreme Court and other courts upheld governmental monopoly of solid waste years ago while recognizing explicitly that some wastes have value and could be sold in the market place. The record does not demonstrate that there has been a substantial change in the relative value of recyclable waste. Paper, cardboard boxes and metal have been a substantial part of garbage for years. We have perhaps become more conscious of the need to conserve and reuse resources, but this fact does not distinguish the old cases. Neither does the fact that the City appropriates the value and sells some of the recyclable wastes, or chooses in manufacturing energy to burn some of the paper and cardboard rather than resell it, distinguish the old cases. Under these cases, the City could have simply taken over all garbage collection as in San Francisco, Detroit and Cincinnati, depriving existing collectors of any business at all. Here the greater would seem to include the lesser, and the fact that the City adopted a less restrictive alternative is not a valid distinction. Since the private collectors claim that they gave substantial rebates to their customers for the recyclable wastes they sold in the market place, at most the value of the recyclables appropriated by the city represents a licensing fee, service charge or tax imposed on persons in the City who generate and collect garbage. The requirement that collectors deposit at the plant some valuable wastes, the sale of which supports the costs of incineration and the production of energy, is a valid exercise of the police power. The City may appropriate the value of marketable items abandoned by the owner and mixed in the stream of garbage in order to pay part of the general social costs of waste disposal. In addition Akron, a heavily industrial city, was faced with the loss of its main source of supply of energy for many of its downtown industrial and commercial businesses. The economic and social consequences of interruption in the supply of steam would be serious and justify the exercise of the police power challenged here. The three cases discussed above also satisfy us that the involvement of the private company, Teledyne, in the operation of the plant in return for one-half of the profits from sale of recyclables is not improper under the takings or due process clause because it redistributes income from private collectors to Teledyne. In each of the cases discussed above the city granted a monopoly right to collect garbage to a single company, permitting that company alone to engage in a profitable business that had previously been done by several firms. The courts held that the public interest in regulation of the collection of garbage was so great that monopolization of the service and the attendant transfer of profits did not violate the takings or due process clause. III. THE INTERSTATE COMMERCE QUESTION In recent cases the Supreme Court has developed a test to determine the validity of government actions challenged under the interstate commerce clause. Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Minnesota v. Clover Leaf Creamery Co., 101 S.Ct. 715 (1981). In Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979), the Court presented the test as follows: [W]e must inquire (1) whether the challenged statute regulates evenhandedly with only “incidental” effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce. In the present case, there is no indication that the City’s actions are protective measures designed to discriminate against interstate commerce. The appropriation of value under the police power falls on local people who vote in Akron, not on people from out of town. The effect on commerce is minimal. The City continues to sell the recyclable metals in commerce just as did the private collectors.' The fact that the city burns some paper and cardboard that would otherwise be sold in commerce by the private collectors does not discriminate against or substantially burden interstate commerce. The paper is converted to energy that is sold to Akron tire plants and other businesses. The record does not indicate that any national or regional market for paper is substantially affected by Akron’s conduct or that supply would be restricted enough to affect prices. The only identifiable costs imposed are local. Unlike the statutes in Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951) (municipal enactment requiring that milk be pasteurized within five mile radius of city violates commerce clause), City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (state law prohibiting importation of garbage into state invalidated under commerce clause as an “economic protectionist” measure designed to impose burden on residents of other states), and other commerce clause cases relied on by plaintiffs, Akron’s legislation does not have the effect of taxing or preventing competition by nonresidents. It is not special interest legislation that discriminates against out-of-town people who vote elsewhere in favor of local residents and local voters. The economic costs of the Akron measure fall hardest on people who generate and collect garbage in the City of Akron. Since the Akron ordinance does not discriminate against, or otherwise seriously burden, interstate commerce, the plaintiffs’ arguments based on the commerce clause are unpersuasive. Defendants’ regulations, therefore, do not violate any of the standards set forth by the Supreme Court in Pike v. Bruce Church, Inc. and Hughes v. Oklahoma, supra. IV. THE ANTITRUST QUESTION The remaining federalism issue is whether the Sherman Act preempts and displaces local legislation creating municipal monopolies — -whether restraining competition in solid waste by local government “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in enacting the antitrust laws. Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Plaintiffs argue that the state action exemption to the antitrust laws first articulated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) (upholding a California agricultural program restricting the marketing of raisins in order to maintain farm prices), does not apply to cities unless the state by legislation has explicitly authorized the local anti-competitive conduct and maintains a high degree of supervision over the local conduct. For this argument the plaintiffs rely primarily on City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), a case in which a municipal electric utility sought to force customers who lived outside the city into tying and other anticompetitive arrangements. Four members of the Court in that case agreed that the state action exemption does not protect municipalities from antitrust liability when their anticompetitive actions are not (a) “directed or authorized” and (b) “supervised” by the state as a part of a state policy to substitute regulation or monopoly for competition. Id. at 410, 98 S.Ct. at 1135 (discussing Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)). Accord, California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). Chief Justice Burger concurred specially in the opinion, finding the city subject to liability under the Sherman Act, but his reasoning was entirely different from the other members of the majority. He reasoned that the state action exemption should be inapplicable when cities are engaged in business activity, as distinguished from a governmental function. He viewed the operation of a municipal electric company as an entrepreneurial or proprietary function and therefore subject to the antitrust laws. Four members of the Court dissented on the ground that local governmental bodies are simply not subject to the Sherman Act. Another possible rationale for the decision of the majority arises from the fact that the city was seeking to exercise market or monopoly power outside its corporate boundaries, that is, outside the area in which it was empowered to act as a government under state law. Although the opinions do not stress this fact, it may turn out that the narrow holding of the case is that a city loses its antitrust exemption if it competes with others outside the boundaries of its governmental authority in an area in which it is not politically accountable. It is difficult for us to apply the Lafayette decision since the plurality and dissenting opinions are each supported by four justices, and no line of reasoning commands a majority of the Court. Whatever principle the Supreme Court may settle on in the future respecting municipal antitrust liability, however, we believe the city of Akron is exempt from the Sherman Act in this case. Garbage collection and the operation of incineration plants are traditional activities of local government. As discussed above, the reported cases, state and federal, have long allowed municipalities to create monopolies and restrain competition in carrying out this function. Moreover, in Ohio, the home rule provisions of the state Constitution, as interpreted by the Ohio Supreme Court in the Cincinnati case, supra, authorize local government to create a municipal solid waste monopoly. The legal system of the state specifically allows the municipal ordinance in question here, and an agency of the state, the Water Authority, maintains some oversight of the facility. In addition, the City is acting entirely within its own governmental boundaries. It is affecting people to whom it is politically accountable. Finally, the United States government has advised us that this municipal activity is in accord with federal energy and environmental policy as established in the Resource Conservation and Recovery Act, and as practiced by the Environmental Protection Agency and the Department of Energy. These departments are encouraging and assisting cities and towns in building such facilities and controlling solid waste collection and disposal. Scholars have pointed out that the essential conflict of values here is the conflict between the ideals of competition and free markets embodied in the Sherman Act and the principles of federalism contained in the Tenth and Eleventh Amendments. In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), the Supreme Court reviewed the limits imposed by the Tenth Amendment upon Congressional authority to regulate state governmental activities under its commerce clause power. The Court held that Congress could not “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions.... ” Id. at 852, 96 S.Ct. at 2474. Various courts have since used and refined the National League of Cities test to determine which of the multitude of local governmental activities are insulated from federal regulation. See, e. g. Amersbaeh v. City of Cleveland, 598 F.2d 1033 (6th Cir. 1979) (operation of metropolitan airport an integral governmental function; “terms ‘traditional’ or ‘integral’ are to be given a meaning permitting expansion to meet changing times”); United Transportation Union v. Long Island Ry. Co., 634 F.2d 19 (2d Cir. 1980) (provision of commuter rail service an integral governmental function; “not only is [rail service] essential to the public, but it is also essential that the government step in to furnish it”). Although the scope of Tenth Amendment limitations on affirmative congressional action is narrow, Tenth Amendment values should not be narrowly read when Congress has not expressly or by clear implication displaced a traditional exercise of local police power. Since solid waste, disposal including the regulation of garbage collection, incineration and “recycling” is a customary area of local concern long reserved to state and local governments by practice, tradition and legal precedent, the Sherman Act should not apply. Tenth and Eleventh Amendment values support the authority of local governments to act in this field. Their plenary, governmental power to deal with such local problems affecting the public interest should not be preempted or displaced by general statutory policies favoring an economic model of competition for businessmen and industrialists operating in private markets. Finally, there is a policy argument that even if defendants may regulate or monopolize the collection and disposal of nonrecyclable, valueless waste — whether for public health and safety or economic reasons— they may not do so for recyclables. This is because once recyclables are separated from the mass of garbage, their transport and reuse cause no danger to the public health and impose no costs upon the community. In addition, a market for recyclables has grown up in recent years, whose development should be encouraged rather than inhibited by the government. Finally, because no market failures exist leading to the creation of a natural monopoly, defendants are not economically justified in their intervention and regulation in the market for recyclables. We are uncertain whether or not this argument represents good public policy. The legislators, planners and administrators involved do not agree with it. The planners and legislators for the City, the Environmental Protection Agency and the Department of Energy agree that private markets should be replaced by municipal control of recyclable wastes in this instance. The policy question here, in our judgment, is debatable and should not be taken out of municipal hands by federal courts in the absence of congressional intent clearly expressed. Accordingly, the judgment of the District Court is affirmed. . Municipal efforts in the field of waste recovery and energy recycling have developed dramatically in the last decade. In its March 1981 report, the National Center for Resource Recovery, Inc. listed sixty-three “materials and energy recovery facilities,” at various stages of construction or operation, and varying in capital cost from $200,000 to $160 million, located in twenty-six states throughout the nation. Almost all the facilities include a local government entity as a primary participant, and almost all use one or more of several processes to convert deposited solid waste into energy. A smaller number are also equipped to recover recyclable materials, such as ferrous and nonferrous metals and glass, for reuse. The Akron facility that is the focus of the present lawsuit, which was constructed at a cost of $55 million and has a capacity of one thousand tons of waste per day, appears to be among the more ambitious projects. . The pertinent provisions of the cooperative agreement read as follows: [The City of Akron] will not establish, construct, or operate nor consent to the establishment, construction or operation of any facility for the disposal or other treatment of Solid Waste which is acceptable for disposal [at the plant] and for which the [plant] has capacity available and which the [Water Authority] determines to be detrimental to the [plant], and, further, to the extent legally permissible, it will oppose the establishment, construction or operation of such a facility— ****** For the term of this Agreement, the [City] shall require that all collectors and haulers of Solid Waste within the [City] be licensed by the [City] and all such licenses shall provide that all collectors or haulers of Solid Waste shall dispose of all Solid Waste generated within the corporate limits of the [City] which is acceptable for disposal by the [plant] to be delivered to the [plant] for disposal through the [plant] and require that such haulers and collectors and the [City] pay or cause to be paid the fees and charges imposed by the [City] for the disposal of Solid Wastes at the [plant]. The [City] will take all available action, administrative, judicial and legislative, to cause all Solid Waste generated within the corporate limits of the [City] and which is acceptable for disposal by the project, to be delivered to the [plant] for disposal through the [plant], * * * * * * The [City] shall use its best efforts to establish rates and charges for the disposal of Solid Waste through.the [plant] at a level which assures an adequate supply of Solid Waste for the purpose of the [plant] and, subject to the foregoing, shall be comparable with competitive charges for such services.... **** The County will not establish, construct, or operate nor consent to the establishment, construction or operation of any facility for the disposal or other treatment which [the Water Authority] solely determines to be detrimental to the [plant] of Solid Waste which is acceptable for disposal by the [plant] and for which the [plant] has capacity available, and further' to the extent legally permissible, it will oppose the establishment, construction or operation of such facilities. **** The County will take all legally available action, administrative, judicial and legislative, to cause all Solid Waste generated within the County and which is acceptable for disposal by the [plant] and for which the [plant] has capacity available, to be delivered to the Project for disposal through the [plant], . The challenged provisions of the ordinance read: Until such time as the City’s recycle energy plant begins accepting rubbish for disposal, no rubbish shall be deposited by the holder of a rubbish hauler’s license within the corporate limits of the City except at a place designated in writing by the Mayor. From and after the date on which such plant begins accepting rubbish for disposal, all rubbish collected within the corporate limits of the City by a holder of a rubbish hauler’s license shall be deposited at such plant; provided that rubbish which is not acceptable for disposal by such plant shall not be deposited within the City except at a place designated in writing by the Mayor. $ * * $ * No person, except duly authorized collectors of the City or private haulers licensed pursuant to law shall collect or remove any garbage, or rubbish accumulating within the City or use the streets, 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_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. HOLDER, ATTORNEY GENERAL v. MARTINEZ GUTIERREZ No. 10-1542. Argued January 18, 2012 Decided May 21, 2012 Kagan, J., delivered the opinion for a unanimous Court. Leondra R. Kruger argued the cause for petitioner in both cases. On the briefs were Solicitor General Verrilli, As sistant Attorney General West, Deputy Solicitor General Kneedler, Pratik A. Shah, Donald E. Keener, and Carol Federighi. Stephen B. Kinnaird argued the cause for respondent in No. 10-1542. With him on the briefs were Igor V. Timo-feyev, Stephanos Bibas, and Michael Franquinha. Charles A. Rothfeld argued the cause for respondent in No. 10-1543. With him on the brief were Andrew J. Pincus and Jeffrey A. Meyer Together with No. 10-1543, Holder, Attorney General v. Sawyers, also on certiorari to the same court. Jeffrey T. Green, Charles Roth, and Sarah O’Rourke Schrup filed a brief for the National Immigration Justice Center as amicus curiae urging affirmance in both cases. Justice Kagan delivered the opinion of the Court. An immigration statute, 8 U. S. C. § 1229b(a), authorizes the Attorney General to cancel the removal of an alien from the United States so long as the alien satisfies certain criteria. One of those criteria relates to the length of time an alien has lawfully resided in the United States, and another to the length of time he has held permanent resident status here. We consider whether the Board of Immigration Appeals (BIA or Board) could reasonably conclude that an alien living in this country as a child must meet those requirements on his own, without counting a parent’s years of residence or immigration status. We hold that the BIA’s approach is based on a permissible construction of the statute. I A The immigration laws have long given the Attorney General discretion to permit certain otherwise-removable aliens to remain in the United States. See Judulang v. Holder, 565 U. S. 42, 59 (2011). The Attorney General formerly exercised this authority by virtue of § 212(c) of the Immigration and Nationality Act (INA), 66 Stat. 187, 8 U. S. C. § 1182(e) (1994 ed.), a provision with some lingering relevance here, see infra, at 7-9. But in 1996, Congress replaced § 212(c) with §1229b(a) (2006 ed.). That new section, applicable to the cases before us, provides as follows: “(a) Cancellation of removal for certain permanent residents “The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien— “(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, “(2) has resided in the United States continuously for 7 years after having been admitted in any status, and “(3) has not been convicted of any aggravated felony.” Ibid. Section 1229b(a) thus specifies the criteria that make an alien eligible to obtain relief from the Attorney General. The first paragraph requires that the alien have held the status of a lawful permanent resident (LPR) for at least five years. And the second adds that the alien must have lived in the United States for at least seven continuous years after a lawful admission, whether as an LPR or in some other immigration status. (The third paragraph is not at issue in these cases.) The question we consider here is whether, in applying this statutory provision, the BIA should impute a parent’s years of continuous residence or LPR status to his or her child. That question arises because a child may enter the country lawfully, or may gain LPR status, after one of his parents does. A parent may therefore satisfy the requirements of §§ 1229b(a)(l) and (a)(2), while his or her child, considered independently, does not. In these circumstances, is the child eligible for cancellation of removal? The Ninth Circuit, the first court of appeals to confront this issue, held that such an alien could obtain relief. See Cuevas-Gaspar v. Gonzales,. 430 F. 3d 1013 (2005). Enrique Cuevas-Gaspar and his parents came to the United States illegally in 1985, when he was one year old. Cuevas-Gaspar’s mother was lawfully admitted to the country in 1990, as an LPR. But Cuevas-Gaspar was lawfully admitted only in 1997, when he too received LPR status. That meant that when Cuevas-Gaspar committed a removable offense in 2002, he could not independently satisfy § 1229b(a)(2)’s requirement of seven consecutive years of residence after a lawful entry. (The parties agreed that he just met § 1229b(a)(l)’s 5-year status requirement.) The Board deemed Cuevas-Gaspar ineligible for relief on that account, but the Ninth Circuit found that position unreasonable. According to the Court of Appeals, the Board should have “imputed” to Cuevas-Gaspar his mother’s years of continuous residence during the time he lived with her as an “unemanci-pated minor.” Id., at 1029. That approach, the Ninth Circuit reasoned, followed from both the INA’s “priorit[ization]” of familial relations and the Board’s “consistent willingness” to make imputations from a parent to a child in many areas of immigration law. Id., at 1026. The Board responded by reiterating its opposition to imputation under both relevant paragraphs of §1229b(a). In In re Escobar, 24 I. & N. Dec. 231 (2007), the Board considered whether a child could rely on a parent’s period of LPR status to satisfy § 1229b(a)(l)’s 5-year clock. The Board expressly “disagree[d] with the reasoning” of Cuevas-Gaspar, rejecting the Ninth Circuit’s understanding of both the statute and the Board’s prior policies. 24 I. & N. Dec., at 233-234, and n. 4. Accordingly, the Board announced that it would “decline to extend” Cuevas-Gaspar to any case involving § 1229b(a)(l), and that it would ignore the decision even as to § 1229b(a)(2) outside the Ninth Circuit. 241. & N. Dec., at 235. A year later, in Matter of Ramirez-Vargas, 24 I. & N. Dec. 599 (2008), the BIA took the final step: It rejected imputation under § 1229b(a)(2) in a case arising in the Ninth Circuit, maintaining that the court should abandon Cuevas-Gaspar and defer to the Board’s intervening reasoned decision in Escobar. See Ramirez-Vargas, 24 I. & N. Dec., at 600-601 (citing National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967 (2005)). The BIA’s position on imputation touched off a split in the courts of appeals. The Third and Fifth Circuits both deferred to the BIA’s approach as a reasonable construction of §1229b(a). See Augustin v. Attorney Gen., 520 F. 3d 264 (CA3 2008); Deus v. Holder, 591 F. 3d 807 (CA5 2009). But in Mercado-Zazueta v. Holder, 580 F. 3d 1102 (2009), the Ninth Circuit doubled down on its contrary view, declaring the BIA’s position unreasonable and requiring imputation under both §§ 1229b(a)(1) and (a)(2). See id., at 1103 (“[T]he rationale and holding of Cuevas-Gaspar apply equally to the five-year permanent residence and the seven-year continuance residence requirements” of § 1229b(a)). B Two cases are before us. In 1989, at the age of five, respondent Carlos Martinez Gutierrez illegally entered the United States with his family. Martinez Gutierrez’s father was lawfully admitted to the country two years later as an LPR. But Martinez Gutierrez himself was neither lawfully admitted nor given LPR status until 2003. Two years after that, Martinez Gutierrez was apprehended for smuggling undocumented aliens across the border. He admitted the offense, and sought cancellation of removal. The Immigration Judge concluded that Martinez Gutierrez qualified for relief because of his father’s immigration history, even though Martinez Gutierrez could not satisfy either § 1229b(a)(l) or §1229b(a)(2) on his own. See App. to Pet. for Cert, in No. 10-1542, pp. 20a-22a (citing Cuevas-Gaspar, 430 F. 3d 1013). The BIA reversed, and after entry of a removal order on remand, reaffirmed its disposition in an order relying on Escobar, see App. to Pet. for Cert, in No. 10-1542, at 5a-6a. The Ninth Circuit then granted Martinez Gutierrez’s petition for review and remanded the case to the Board for reconsideration in light of the court’s contrary decisions.. See 411 Fed. Appx. 121 (2011). Respondent Damien Sawyers was lawfully admitted as an LPR in October 1995, when he was 15 years old. At that time, his mother had already resided in the country for six consecutive years following a lawful entry. After Sawyers’s conviction of a drug offense in August 2002, the Government initiated removal proceedings. The Immigration Judge found Sawyers ineligible for cancellation of removal because he was a few months shy of the seven years of continuous residence required under § 1229b(a)(2). See App. to Pet. for Cert. in No. 10-1543, p. 13a. (No one doubted that Sawyers had by that time held LPR status for five years, as required under § 1229b(a)(l).) The Board affirmed, relying on its reasoning in Escobar. See In re Sawyers, No. [ AXX XXX XXX ], 2007 WL 4711443 (Dec. 26, 2007). Sawyers petitioned the Ninth Circuit for review, arguing that the Board should have counted his mother’s years of residency while he was a minor toward § 1229b(a)(2)’s 7-year requirement. As in Gutierrez, the Court of Appeals granted the petition and remanded the case to the BIA. See 399 Fed. Appx. 313 (2010). We granted the Government’s petitions for certiorari, 564 U. S. 1066 (2011), consolidated the cases, and now reverse the Ninth Circuit’s judgments. II The Board has required each alien seeking cancellation of removal to satisfy §1229b(a)’s requirements on his own, without counting a parent’s years of continuous residence or LPR status. That position prevails if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844, and n. 11 (1984); see also INS v. Aguirre-Aguirre, 526 U. S. 415, 424-425 (1999) (according Chevron deference to the Board’s interpretations of the INA). We think the BIA’s view on imputation meets that standard, and so need not decide if the statute permits any other construction. The Board’s approach is consistent with the statute’s text, as even respondents tacitly concede. Section 1229b(a) does not mention imputation, much less require it. The provision calls for “the alien” — not, say, “the alien or one of his parents” — to meet the three prerequisites for cancellation of removal. Similarly, several of §1229b(a)’s other terms have statutory definitions referring to only a single individual. See, e. g., § 1101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States” (emphasis added)); § 1101(a)(33) (“The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling” (emphasis added)). Respondents contend that none of this language “forecloses” imputation: They argue that if the Board allowed imputation, “[t]he alien” seeking cancellation would “still have to satisfy the provision’s durational requirements” — just pursuant to a different computational rule. Brief for Respondent Martinez Gutierrez in No. 10-1542, p. 16 (hereinafter Martinez Gutierrez Brief); see Brief for Respondent Sawyers in No. 10-1543, pp. 11,15 (hereinafter Sawyers Brief). And they claim that the Board’s history of permitting imputation under similarly “silent” statutes supports this construction. Martinez Gutierrez Brief 16; see Sawyers Brief 15-16; infra, at 594-596. But even if so — even if the Board could adopt an imputation rule consistent with the statute’s text — that would not avail respondents. Taken alone, the language of § 1229b(a) at least permits the Board to go the other way — to say that “the alien” must meet the statutory conditions independently, without relying on a parent’s history. For this reason, respondents focus on § 1229b(a)’s history and context — particularly, the provision’s relationship to the INA’s former § 212(c) and its associated imputation rule. Section 212(c) — §1229b(a)’s predecessor — generally allowed the Attorney General to prevent the removal of an alien with LPR status who had maintained a “lawful unrelinquished domicile of seven consecutive years” in this country. 8 U.S.C. § 1182(c) (1994 ed.). Like §1229b(a), §212(c) was silent on imputation. Yet the Second, Third, and Ninth Circuits (the only appellate courts to consider the question) concluded that, in determining eligibility for relief under § 212(c), the Board should impute a parent’s years of domicile to his or her child. See Rosario v. INS, 962 F. 2d 220 (CA2 1992); Lepe-Guitron v. INS, 16 F. 3d 1021, 1024-1026 (CA9 1994); Morel v. INS, 90 F. 3d 833, 840-842 (CA3 1996). Those courts reasoned that at common law, a minor’s domicile was “the same as that of its parents, since most children are presumed not legally capable of forming the requisite intent to establish their own domicile.” Rosario, 962 F. 2d, at 224; see Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 48 (1989) (defining “domicile” as “physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there”). So by the time Congress replaced § 212(c) with § 1229b(a), the BIA often imputed a parent’s years of domicile to a child in determining eligibility for cancellation of removal. Sawyers argues that against this backdrop, Congress “would have understood the language it chose [in §1229b(a)] to provide for imputation.” Sawyers Brief 10. But we cannot conclude that Congress ratified an imputation requirement when it passed § 1229b(a). As all parties agree, Congress enacted §§ 1229b(a)(l) and (a)(2) to resolve an unrelated question about §212(c)’s meaning. See id., at 17; Martinez Gutierrez Brief 28; Brief for Petitioner 25. Courts had differed on whether an alien’s “seven consecutive years” of domicile under § 212(c) all had to post-date the alien’s obtaining LPR status. See Cuevas-Gaspar, 430 F. 3d, at 1027-1028 (canvassing split). Congress addressed that split by creating two distinct durational conditions: the 5-year status requirement of subsection (a)(1), which runs from the time an alien becomes an LPR, and the 7-year continuous-residency requirement of subsection (a)(2), which can include years preceding the acquisition of LPR status. In doing so, Congress eliminated the very term — “domicile” — on which the appeals courts had founded their imputation decisions. See supra, at 592. That alteration dooms respondents’ position, because the doctrine of congressional ratification applies only when Congress reenacts a statute without relevant change. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 349 (2005). So the statutory history here provides no basis for holding that the BIA flouted a congressional command in adopting its no-imputation policy. Nor do the INA’s purposes demand imputation here, as both respondents claim. According to Martinez Gutierrez, the BIA’s approach contradicts that statute’s objectives of “providing relief to aliens with strong ties to the United States” and “promoting family unity.” Martinez Gutierrez Brief 40, 44; see Sawyers Brief 87. We agree — indeed, we have stated — that the goals respondents identify underlie or inform many provisions of immigration law. See Fiallo v. Bell, 430 U. S. 787, 795, n. 6 (1977); INS v. Errico, 385 U. S. 214, 220 (1966). But they are not the INA’s only goals, and Congress did not pursue them to the nth degree. To take one example, § 1229b(a)’s third paragraph makes aliens convicted of aggravated felonies ineligible for cancellation of removal, regardless of the strength of their family ties. See § 122913(a)(3). And more generally — as these very cases show — not every alien who obtains LPR status can immediately get the same for her spouse or minor children. See Brief for Petitioner 31-32, and n. 9 (providing program-specific examples). We cannot read a silent statute as requiring (not merely allowing) imputation just because that rule would be family-friendly. Respondents’ stronger arguments take a different tack— that we should refuse to defer to the Board’s decision even assuming Congress placed the question of imputation in its hands. Respondents offer two main reasons. First, they contend that the Board’s approach to §1229b(a) cannot be squared with its acceptance of imputation under other, similar statutory provisions. This “wil[d]” and “ ‘[unexplained inconsistency,’” Sawyers asserts, is the very “paradigm of arbitrary agency action.” Sawyers Brief 13, 41 (emphasis deleted); see Martinez Gutierrez Brief 52-54. Second, they argue that the Board did not appreciate its own discretion over whether to allow imputation. The Board, they say, thought Congress had forbidden imputation, and so did not bring its “ ‘experience and- expertise to bear’ ” on the issue. Id., at 31 (quoting PDK Labs. Inc. v. DEA, 362 F. 3d 786, 797 (CADC 2004)); see Sawyers Brief 38-39. These arguments are not insubstantial, but in the end neither persuades us to deny the Board the usual deference we accord to agency interpretations. Start with the claim of inconsistency. The BIA has indeed imputed parental attributes to children under othér INA provisions that do not mention the matter. Section 1182(k), for example, enables the Attorney General to let certain inadmissible aliens into the country if he finds “that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure.” Like § 1229b(a), that provision refers to a single person (“the immigrant”) and says nothing about imputation. But the BIA has consistently imputed a parent’s knowledge of inadmissibility (or lack thereof) to a child. See, e. g., Senica v. INS, 16 F. 3d 1013, 1015 (CA9 1994) (“Therefore, the BIA reasoned, the children were not entitled to relief under [§ 1182(k)] because [their mother’s] knowledge was imputed to them”); In re Mushtaq, No. [ AXX XXX XXX ], 2007 WL 4707539 (BIA, Dec. 10, 2007) (per curiam); In re Ahmed, No. [ AXX XXX XXX ], 2006 WL 448156 (BIA, Jan. 17, 2006) (per curiam). Similarly, the Board imputes a parent’s abandonment (or non-abandonment) of LPR status to her child when determining whether that child can reenter the country as a “returning resident immigran[t]” under § 1181(b). See Matter of Zamora, 17 I. & N. Dec. 395, 396 (1980) (holding that a “voluntary and intended abandonment by the mother is imputed” to an unemancipated minor child for purposes of applying § 1181(b)); Matter of Huang, 19 I. & N. Dec. 749, 755-756 (1988) (concluding that a mother and her children abandoned their LPR status based solely on the mother’s intent); In re Ali, No. [ AXX XXX XXX ], 2006 WL 3088820 (BIA, Sept. 11, 2006) (holding that a child could not have abandoned his LPR status if his mother had not abandoned hers). And once again, that is so even though neither § 1181(b) nor any other statutory provision says that the BIA should look to the parent in assessing the child’s eligibility for reentry. But Escobar provided a reasoned explanation for these divergent results: The Board imputes matters involving an alien’s state of mind, while declining to impute objective conT ditions or characteristics. See 24 I. & N. Bee., at 233-234, and n. 4. On one side of the line, knowledge of inadmissibility is all and only about a mental state. See, e. g., Senica, 16 F. 3d, at 1015; In re Ahmed, 2006 WL 448156. Likewise, abandonment of status turns on an alien’s “intention of . . . returning to the United States” to live as a permanent resident, Zamora, 17 I. & N. Dec., at 396; the Board thus explained that imputing abandonment is “consistent with the . . . longstanding policy that a child cannot form the intent necessary to establish his or her own domicile,” Escobar, 24 I. & N. Dec., at 234, n. 4. And as that analogy recalls, the 7-year domicile requirement of the former § 212(c) also involved intent and so lent itself to imputation. See Rosario, 962 F. 2d, at 224; supra, at 592. But the 5- and 7-year clocks of § 1229b(a) fall on the other side of the line, because they hinge not on any state of mind but on the objective facts of immigration status and place of residence. See Escobar, 24 I. & N. Dec., at 233 (“[W]e find that residence is different from domicile because it ‘contains no element of subjective intent’ ” (quoting Cuevas-Gaspar, 430 F. 3d, at 1031 (Fernandez, J., dissenting))). The BIA’s varied rulings on imputation thus largely follow from one straightforward distinction. Similarly, Escobar belies respondents’ claim that the BIA adopted its no-imputation rule only because it thought Congress had left it no other choice. The Board, to be sure, did not highlight the statute’s gaps or ambiguity; rather, it read §1229b(a)’s text to support its conclusion that each alien must personally meet that section’s durational requirements. See 24 I. & N. Dec., at 235. But the Board also explained that “there [was] no precedent” in its decisions for imputing status or residence, and distinguished those statutory terms, on the ground just explained, from domicile or abandonment of LPR status. Id., at 284; see id., at 238-234, and n. 4. And the Board argued that allowing imputation under §1229b(a) would create anomalies in administration of the statutory scheme by permitting even those who had not obtained LPR status — or could not do so because of a criminal history — to become eligible for cancellation of removal. See id., at 234-235, and n. 5. The Board therefore saw neither a “logical” nor a “legal” basis for adopting a policy of imputation. Id., at 233. We see nothing in this decision to suggest that the Board thought its hands tied, or that it might have reached a different result if assured it could do so. To the contrary, the decision expressed the BIA’s view, based on its experience implementing the INA, that statutory text, administrative practice, and regulatory policy all pointed in one direction: toward disallowing imputation. In making that case, the decision reads like a multitude of agency interpretations — not the best example, but far from the worst— to which we and other courts have routinely deferred. We see no reason not to do so here. Because the Board’s rejection of imputation under § 1229b(a) is “based on a permissible construction of the statute,” Chevron, 467 U. S., at 843, we reverse the Ninth Circuit’s judgments and remand the cases for further proceedings consistent with this opinion. It is so ordered. The INA defines “admitted” as referring to “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U. S. C. § 1101(a)(13)(A). The 7-year clock of § 1229b(a)(2) thus begins with an alien’s lawful entry. The 7-year clock, stopped running on the date of Cuevas-Gaspar’s offense under a statutory provision known as the “stop-time” rule. See § 1229b(d)(l) (“For purposes of this section, any period of continuous residence ... in the United States shall be deemed to end ... when the alien is served a notice to appear . . . or . . . when the alien has committed an offense . . . that renders the alien . . . removable from the United States ..., whichever is earliest”). Sawyers contends that § 1229b(a)(2)’s replacement term — “resided continuously” — is a “term of art” in the immigration context which incorporates “an intent component” and so means the same thing as “domiciled.” Sawyers Brief 25-26 (emphasis deleted). Thus, Sawyers argues, we should read § 1229b(a) as reenacting § 212(c) without meaningful change. See id., at 25. But even assuming that Congress could ratify judicial decisions based on the term “domicile” through a new statute using a synonym for that term, we do not think “resided continuously” qualifies. The INA defines “residence” as a person’s “principal, actual dwelling place in fact, without regard to intent,” 8 U. S. C. § 1101(a)(33) (emphasis added), and we find nothing to suggest that Congress added an intent element, inconsistent with that definition, by requiring that the residence have been maintained “continuously for 7 years.” Respondents aver that the BIA deviates from this principle in imputing to a child his parent’s “ ‘firm resettlement’ ” in another country, which renders an alien ineligible for asylum without regard to intent. See Sawyers Brief 39; Martinez Gutierrez Brief 52. • But the Government denies that it has a “settled imputation rule” in that context. Reply Brief for Petitioner 13. And the sources on which respondents rely are slender reeds: a 40-year-old ruling by a regional commissioner (not the Board itself) that considered the conduct of both the parents and the child, see Matter of Ng, 12 I. & N. Dec. 411 (1967), and a Ninth Circuit decision imputing a parent’s resettlement even though the Board had focused only on the child’s actions, see Vang v. INS, 146 F. 3d 1114, 1117 (1998). Based on these scant decisions, we cannot conclude that the Board has any policy on imputing resettlement, let alone one inconsistent with Escobar. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_typeiss	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. Linda GUEST, Plaintiff-Appellant, v. PHILLIPS PETROLEUM COMPANY and Phillips 66 Company, Defendants-Appellees. No. 91-7022. United States Court of Appeals, Fifth Circuit. Jan. 18, 1993. Rehearing Denied Feb. 16, 1993. Joe L. Lovell, John W. Reeder and John H. Lovell, Garner, Stone & Lovell, Amarillo, Tex., for plaintiff-appellant. Matthew H. Hand and Susan L. Edwards, Phillips Petroleum Co., Amarillo, Tex., for defendants-appellees. Before BROWN, GARWOOD, and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge: I. FACTS AND PROCEDURAL HISTORY In 1986, defendants Phillips Petroleum Company and Phillips 66 Company (collectively Phillips) sought to expand their refinery. To do so, it was necessary that homeowners living on leased land around the refinery move. To accommodate those who were moving, Phillips developed a residential subdivision, known as the Golf Course Addition, near Borger, Texas. Phillips offered to sell lots in this subdivision to the relocating homeowners at prices below fair market value. Plaintiff Linda Guest (Guest) was among those who bought a lot in and moved her house to the Golf Course Addition. In 1988, when a large hole appeared under one of the houses, residents of the Golf Course Addition discovered that their subdivision was located on top of several abandoned well sites. These wells had been drilled and abandoned in the 1920’s under rules and regulations which would not satisfy the current rules and regulations regarding the plugging of abandoned wells established by the Texas Railroad Commission; and there was therefore considerable uncertainty as to the method used, if any, to plug these wells prior to abandonment. Guest’s house was one of those located on top of an abandoned well. At the time of trial, however, the well had not caved in and the presence of the well had not caused any structural damage to the house. Guest sued Phillips under the Texas Deceptive Trade Practices Act, Tex.Bus. & Comm.Code Ann. § 17.46 (the Act) in the United States District Court for the Northern District of Texas (USDC) alleging that it had misrepresented the quality of the lot, engaged in an unconscionable course of conduct, and furnished a residential lot that was not suitable for human habitation. A jury found that Phillips had violated the Act by those practices. As for damages, the jury found that the reduction in the fair market value of the house caused by the presence of the well was $44,250. The jury also found that the reasonable and necessary cost of moving and reestablishing the house on a comparable lot was $83,000. After the jury returned its verdict, Guest filed a motion asking that judgment be entered on the $83,000 damage figure. She also asked for prejudgment interest on $83,000, compounded daily. Phillips opposed the motion, contending that the appropriate measure of damages under the Act was $44,250. Phillips also contended that the prejudgment interest should be compounded annually, rather than daily. The district court agreed with Phillips and entered judgment for actual damages in the amount of $44,250, and prejudgment interest on $44,250, compounded annually. Guest appeals. II. DISCUSSION 1. DAMAGES A. Damages Recoverable Under the Act In this diversity case, we are Erie-bound to follow Texas substantive law. Guest contends that the jury returned two legally acceptable measures of damages: (1) the $44,250 amount for the reduction in the fair market value of the house, and (2) the $83,000 amount for moving and reestablishing the house. Under the Act, a plaintiff is allowed to elect the higher damage amount if the “jury verdict contains more than one acceptable measure of damages.” Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985). Therefore, Guest contends that the USDC erred by not allowing her to choose the higher amount of damages— those based on moving and reestablishing the house. Phillips disagrees with Guest and contends that under the Act the only two acceptable measures of damages are “out-of-pocket” and “benefit of the bargain.” Because the damage amount for moving and reestablishing the house is neither “out of pocket” nor “benefit of the bargain,” Phillips contends that the USDC was correct in refusing to award damages based on that higher amount. A recent Texas Supreme Court case directly refutes Phillips' contention. In Henry S. Miller, Inc., v. Bynum, 836 S.W.2d 160 (Tex.1992), Bynum, the owner of a hair salon, leased shopping center space from a leasing agent. The leased space was not as represented by the agent, so Bynum sued under the Act. After a bench trial, the court found that the leasing agent violated the Act and rendered judgment in favor of Bynum for $60,426 in actual damages and $120,852 in additional damages. The additional damages were awarded because the leasing agent knowingly violated the Act. Henry S. Miller Co., v. Bynum, 797 S.W.2d 51, 53 (Tex.App.— Houston [1st Dist.] 1990, affirmed 836 S.W.2d 160 (Tex.1992). The actual damage award represented the lost capital investment of By-num. On appeal, the leasing agent contended that “out of pocket” and “benefit of the bargain” were the only two measures of damages available under the Act. Because the damage award for lost capital investment was based on neither an “out of pocket” nor a “benefit of the bargain” measure of damages, the leasing agent contended that the court erred in awarding such damages. The court disagreed, holding that the Act allows recovery for actual damages, which is the total loss sustained by the consumer as a result of the deceptive act. The court said “[a]ctual damages include related and reasonably necessary expenses. Therefore such direct measures as ‘benefit-of-the-bargain’ and ‘out-of-pocket’ are not exclusive.” (citations omitted). B. Economic Waste Having determined that the Act allows for the recovery of damages based on measures other than “out of pocket” and “benefit of the bargain,” this court must still determine whether the cost of moving and reestablishing the house is an acceptable measure of damages under the Act. We hold that it is not, because the amount awarded for moving and reestablishing the house results in economic waste. Question number 11, element A, of the jury charge inquired as to the “[Reduction of the fair market value of Linda Guest’s home caused by the presence of an abandoned and or improperly plugged well.” The jury answered $44,250. Question number 12, element A, inquired as to “[t]he reasonable and necessary cost of moving Linda Guest’s home and reestablishing it to its current condition and landscaping on another lot or lots. Such cost includes the cost of buying another comparable lot or lots.” The jury answered $83,-000. Damages for the cost to repair are an acceptable measure of damages under the Act. Jim Walter Homes, Inc., v. Valencia, 679 S.W.2d 29 (Tex.App.—Corpus Christi 1984), affirmed as modified, 690 S.W.2d 239 (Tex.1985); March v. Thiery, 729 S.W.2d 889, 895 (Tex.App.—Corpus Christi 1987, no writ). Guest contends that question number 12, element A, inquiring as to the cost of moving and reestablishing the house, is analogous to an inquiry as to the cost of repairing the house. Therefore, Guest contends that the USDC erred in refusing to allow her to elect the higher damage amount based on moving and reestablishing the house. While several Texas courts have awarded damages for the cost of repair, those same Texas courts have limited the recovery of damages for the cost of repair to situations in which the cost of repair does not result in economic waste. In Jim Walter Homes, Inc., v. Valencia, 679 S.W.2d 29 (Tex.App.—Corpus Christi 1984), affirmed as modified, 690 S.W.2d 239 (Tex.1985), a home buyer sued his contractor for misrepresentations the contractor made concerning the quality of a defectively constructed house. At trial, the jury found that the contractor violated the Act and awarded actual damages in the amount of $12,682 for the costs of repairing the house. On appeal, the contractor contended that the trial court erred in not allowing it to present evidence as to the reduction in the fair market value of the house. The court rejected that contention, and held that the cost of repair was the proper measure of damages. The court said: the usual consideration in deciding which measure of damages to use is the economic feasibility of correcting the defects or bringing the house in compliance with the contract. Where the correction of defects and deviations would impair the entire structure or require the expenditure of sums in excess of the value of the structure, the correct measure of damages is the difference in the value of the structure as constructed and its value had it been constructed without defects or deviations,... We hold that the cost of repairs was the proper measure of recovery for the DTPA violation. The record reflects that the correction of the defects would not result in unreasonable ECONOMIC WASTE, and that these corrections were feasible without necessarily incurring unreasonable expense. Id. 679 S.W.2d at 38 (emphasis added) (citations omitted). Several other Texas courts have held that it is improper to award damages under the Act for the cost of repair, if the award of those damages results in economic waste. March v. Thiery, 729 S.W.2d 889, 895 (Tex.App.—Corpus Christi 1987, no writ) (“Another measure of damages which has been approved for DTPA claims is the remedial measure. The damages are based upon the cost of repairs, if repairs are feasible and do not involve economic waste.”); Miller v. Dickenson, 677 S.W.2d 253, 258 (Tex.App.—Fort Worth 1984, writ ref’d n.r.e.) (“The economic feasibility of correcting the defects of the house is the usual consideration in deciding which measure of damages to apply.”); Jim Walter Homes, Inc., v. Mora, 622 S.W.2d 878, 883 (Tex.App.—Corpus Christi 1981, no writ) (“In construction contract cases, where the contractor breaches because of defective construction, Texas courts allow damages based on cost of repair, if repair is feasible and does not involve unreasonable economic waste. Where the correction of defects would require that the structure, in whole or in material part, be changed, or the expense of such repair would be great, the correct measure of damages is the difference in the value of the structure as constructed and its value had it been constructed without defects.”); Greene v. Bearden Enter., Inc., 598 S.W.2d 649, 653 (Tex.Civ.App.—Fort Worth, 1980, writ ref'd. n.r.e.) (“Where the correction of defects and deviations would impair the entire structure or require the expenditure of sums in excess of the value of the structure, the correct measure of damages is the difference in the value of the structure as constructed and its value had it been constructed without defects or deviations.”). Texas rule against awarding damages that result in economic waste compels this court to hold that the damages awarded for moving and reestablishing the house are not “an acceptable measure of damages.” See Kish v. Van Note, 692 S.W.2d at 466. In the present case, it simply was not possible to repair the house. The cost of moving and reestablishing the house, however, is analogous to the cost of repairing a structural defect that exceeds the value of a house in an undamaged condition. According to the jury’s answers, the cost of moving and reestablishing the house was $83,000, whereas the fair market value of the house without the well located beneath it was $45,000. If Guest was allowed to recover on the higher damage amount, Phillips would be required to pay for Guest to move and reestablish the house when those costs far exceed the value of the house without a well located beneath it. A rational homeowner would not make such a decision. It does not make economic sense for anyone to pay $83,000 to move a given house from undesirable Y subdivision to desirable X subdivision when you can buy just as good a house in X for $45,000. In sum, Texas law does not allow a plaintiff to recover damages that result in economic waste, and therefore we hold that the USDC was correct in refusing to allow Guest to elect to recover damages based on the $83,000 figure. The dissent by our distinguished colleague makes much of the fact that the cases we rely on in reaching our decision involve a defect in the house itself rather than a defect in the land upon which the house is built. While we realize that there is such a distinction, we believe that it is not a meaningful one; and that, absent any support in Texas case law to the contrary, the facts in the instant case are sufficiently analogous to those Texas eases denying relief for cost of repair when such costs exceed the value of the house or result in economic waste to support our conclusion. We also believe that the dissent’s concern with whether Guest will be able to find a purchaser are not relevant. The jury implicitly found that Guest’s house with a well located beneath it had a fair market value of $750; thus finding that $750 was the amount of money that a willing purchaser would pay and a willing seller would accept for the house with a well located beneath it. The dissent would have us venture behind the jury’s findings to speculate whether Guest will in actuality be able to sell the house for $750 based on Phillip’s lack of success in selling other homes in the Addition after the discovery of the abandoned well sites. We believe, however, that on appeal we must assume that the jury took those factors, which were fully developed and explored by Guest’s counsel, into consideration in reaching its decision. Finally, we believe that the dissent’s assertion that any amount awarded less than $88,000 will do great injustice and would violate the purposes of the Act is legally and factually insupportable. We do not see how awarding Guest $83,000 for a house that a willing purchaser would pay a willing seller $45,000 for in a free market, if the house did not have a well located beneath it, furthers justice or the purposes of the Act. What the dissent’s proposed disposition of this case would do is award Guest a large windfall in excess of the value of her house without a well beneath it for Phillip’s actions in unknowingly selling her a defective lot. 2. PREJUDGMENT INTEREST The USDC awarded Guest prejudgment interest on $44,250 at the rate of 10 percent per annum, compounded annually. Guest contends that the USDC erred in compounding the interest annually rather than daily. In Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985), the Texas Supreme Court held that “prejudgment interest shall accrue at the prevailing rate that exists on the date judgment is rendered according to the provisions of Tex. Rev.Civ.Stat.Ann. art. 5069-1.05 § 2.” In 1987, the Texas Legislature amended Section 2 to require that interest be compounded annually. The historical and statutory notes to the 1987 amendment provide that the “Act applies only to: (1) an action commenced on or after the effective date of this Act.” Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 § 2 (Historical and Statutory Notes). The effective date of the Act is September 1, 1987. Id. Guest did not sue Phillips until 1989. Moreover, Texas courts have held that Section 2 now requires prejudgment interest to be compounded annually. Enterprise-Laredo Assoc. v. Hachar’s Inc., 839 S.W.2d 822 (Tex.App.—San Antonio 1992, no writ); See also Winograd v. Willis, 789 S.W.2d 307, 312 (Tex.App.—Houston [14th Dist.] 1990, writ denied); OKC Corp. v. UPG Inc., 798 S.W.2d 300, 307 (Tex.App.—Dallas 1990, writ denied). To support her contention that the prejudgment interest should be compounded daily, Guest relies on the case of Law Offices of Moore & Assoc. v. Aetna Ins. Co., 902 F.2d 418 (5th Cir.1990). In that case, this court upheld a lower court judgment that compounded daily prejudgment interest on a suit filed after September 1, 1987 [the effective date of the amendment]. From reading the opinion, however, it is clear that the defendant in that case did not raise the issue of whether the interest should be compounded daily or annually, and that the court’s statement that the interest should be compounded daily was dicta. In any regard, we are bound to follow the Texas courts’ interpretations of Texas law. Therefore, we reject Guest’s contention, and hold that the USDC was correct to compound the prejudgment interest annually. For the foregoing reasons the judgment of the district court is AFFIRMED. . Under the Act, "[i]f the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of 51,000_’’ Texas Bus. & Comm. Code Ann. § 17.50(b)(1). . Question number 12, element B, inquired into "[t]he reasonable amount of money spent in establishing and improving Linda Guest’s home in the Golf Course Addition.” The jury answered none. The jury’s answer is clearly wrong, but Guest neither objected to nor has she appealed that answer. .The estimate to move and reestablish the house was $77,019.02, which consisted of $3,775 for stripping the brick, $1,820 for preparing the house for moving, $5,392.80 for concrete, $692 for steel and wire, $527.30 for wood materials, $10,480.60 for labor, $527 for ditch work, $400 for tool rental, $5,460.70 for carpenter work, $2,100 for ceramic tile work, $885 for electrical work, $5,865 for plumbing work, $7,354 for painting work, $9,580 for brick work, $13,630 for moving the house, $4,187.20 for subcontractor supervision, $275 for floor covering work, $4,200 for removing concrete, and $166.92 for cooling unit removal and installation. The expert for Guest estimated that a comparable lot would cost between $5,000 and $6,000. . The expert for Phillips estimated that the fair market value of the house without the well located beneath it was $45,000, and the expert for Guest estimated that the fair market value was $50,000. Guest concedes on appeal, and the jury found at trial that “[t]he fair market value of Linda Guest’s home" without a well located beneath it was $45,000. . The jury found that the house had a fair market value of $45,000 without a well and that the presence of the well reduced the fair market value of the house by $44,250; thus impliedly finding that the house had a fair market value of $750 with the well located beneath it. . The USDC instructed the jury that fair market value "means the amount of money that a willing purchaser, who desires but does not have to buy, would pay in cash for Linda Guest’s home, and that a willing seller who desires to sell but who is not compelled to sell, would accept for the home.” . The jury did not find that Phillips knowingly violated the Act. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_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, Appellee, v. Hitson SIMON a/k/a “Sacko”, Appellant. No. 91-3738. United States Court of Appeals, Third Circuit. Argued April 27, 1993. Decided June 7, 1993. Hugh P. Mabé III, Acting U.S. Atty., James A Hurd, Jr. (argued), Asst. U.S. Atty., Charlotte Amalie, St. Thomas U.S. Virgin Islands, for appellee. Iver A Stridiron (argued), Charlotte Ama-lie, St. Thomas U.S. Virgin Islands, for appellant. Before: GREENBERG, SCIRICA and GARTH, Circuit Judges. OPINION OF THE COURT GARTH, Circuit Judge: At the murder trial of appellant Hitson Simon,, the district court committed error when it failed to instruct the jury on the government’s burden of proof in relation to an alibi defense, as is required under the law of this. circuit. However, in light of the entire record, which we have independently reviewed, we conclude that the evidence overwhelmingly demonstrated Simon’s guilt beyond a reasonable doubt, and that, therefore, the district court’s otherwise reversible error, was harmless. I. On the afternoon of Sunday, March 31, 1991, Darrel Nicholson was killed by a single gunshot to the head, fired at close range as Nicholson lay sleeping on a wooden plank in an open shed, or “shanty,” in the Stronne Gade area of St. Thomas. The shanty and an adjacent basketball court comprised a regular gathering place, a “hangout,” for a group of St. Thomas youths, including Hitson Simon. (See A. 96). In the aftermath of the murder, the statements of eyewitnesses led officers of the Virgin Islands Police Department to appellant Hitson Simon. Simon subsequently was arrested at his home, and charged with murder in the first degree and with possession of a dangerous weapon during the commission of a violent crime. At trial, the government presented photographic evidence collected at the scene of the murder, along with the testimony of investigating and arresting police officers. At the heart of the trial, however, and at the focal point of our review, was the testimony of government and defense witnesses regarding Simon’s whereabouts at the time of the murder. A. The government presented four eyewitnesses, all of whom placed Hitson Simon at. the basketball court, in the shanty, with a pistol in his hand at the moment the fatal shot was fired: Anthony Fitzgerald Brewley. Anthony Brewley testified that he had grown up with Simon and had known him for fifteen years. (A. 72). Brewley testified that he had spent most of the day on March 31, 1991 — from 11:00 a.m. until 5:00 p.m. — at the basketball court. Id. Brewley testified further that, as he washed his car beside the shanty at approximately 3:45 to 4:00 p.m., Simon arrived at the shanty, (A. 74), and that shortly thereafter, he heard what he described as “a long, loud noise.” (A. 75). Looking through a glass window, Brewley saw Simon backing out of the shanty. Id. According to Brewley, “[t]he rest of the guys” then said that someone had been shot in the head and killed. Id. When asked at trial if he was certain that the person he saw leaving the shanty after the gunshot was Simon, Brewley responded, “There is no doubt in my mind, who I saw.” (A. 75-76). Keith R. Harrigan. Keith Harrigan testified that he had been a friend of Hitson Simon, also known as “Sacko,” for about five years. (A. 81, 96). Harrigan said that he spent “[a]ll day” on March 31 at the basketball court, having arrived there at 7:00 a.m. (A. 81). Harrigan also testified that at 4:00 p.m., as he was working on his car directly adjacent to the shanty, Simon arrived. (A. 83-84). Harrigan then saw Simon enter the Shanty, (A. 84), and soon thereafter, he “heard a shot.” (A. 84). Jason Maduro, also known as “Tayo,” (A 136), came out of the shanty and said “our friend is. dead.” (A. 84). Har-rigan testified that he then saw Simon holding a pistol wrapped in a white cloth, id., that he “saw the nozzle pointing at us,” (A. 85), and that Simon was “telling us we didn’t see nothing.” (A. 84, 85). As Simon departed, Harrigan “heard him mention something like, ‘the same thing you did with my friend is the same thing I did to you.’ ” (A. 85). Harri-gan had “no idea” as to what Simon was referring. (A. 86). Jefferson Titus. Titus testified that he, too, had spent “the whole day” on March 31 at the basketball court, beginning at 11:00 a.m. (A. 99). He also testified that he had known Hitson Simon for four or five years, and that Simon “used to live right down the steps from where I live.” Id. ■ When asked about his relationship with both Simon and the victim, Titus stated, “we were just cool friends, all of us.” (A. 101). At 3:00 or 4:00 p.m., Titus saw Simon walk “below the shanty.” (A. 102,103-104). “The next thing,” Titus testified, “I hear the gunshot fire.” (A. 104). Titus saw Simon “when he came out of the shanty.” Id. He observed what he described as “the look of fear” on the faces of Jason Maduro, “Tayo,” and another friend known as “Junior,” id., and that he heard Simon tell them “that he ain’t want no witnesses, he ain’t want to hear nothing.” Id. When Titus asked Simon what he had done, Simon “point the gun at me and he tell me to shut up and just be quiet. He ain’t want to hear nothing.” Id. Titus described the gun as a black, palm-sized automatic handgun, and that Simon held both the pistol and a white cloth in the same hand. (A. 106). Simon departed “a couple of seconds” later. (A. 104). Jason D. Maduro. Jason Maduro, also known as “Tayo,” testified that he was a friend of Simon and had known him for “about seven to eight years now.” (A. 120). Maduro testified that he had arrived at the basketball court on March 31 at 10:00 a.m. and remained there “[u]ntil nighttime.” (A. 119). Simon arrived shortly after 4:00 p.m. (A 125). From Maduro’s vantage point, “right on the outside of the shanty, on the basketball court,” (A. 121), he saw Simon enter the shanty and pull a “white handkerchief’ from the waist of his pants. After that, I was looking straight out at the Education Building, and then after I heard the gunshot I looked across before Ronnie [the victim] fell to the ground, and Sacko [Simon] was there standing, saying — he was there saying, “The same way you do our friend is the same way you get it.” : (A. 126-127). Like Keith Harrigan, Maduro did not know to what Simon was referring. (A. 133). Later in his testimony, after reviewing a contemporaneous statement he made to the.police, Maduro testified that he heard Simon “crank,” or cock the weapon, prompting him to “look across” into the shanty. (A. 132). Q. What did you see when you looked across? A. ■ He bent over and he hold the pistol to Ronnie [the victim’s] head. Q. What did he do when he held it to his head? A. He fired it. Q. You observed this yourself, this happen, sir? A Yes. Q. How far away were you? A. About fifteen feet away, ten to fifteen feet. Id. Maduro then explained that, after he heard Simon “crank” the handgun and bend over the sleeping victim, “that is when I looked out,” (A. 138; see A. 142-143), so that when the shot was fired, he was looking at the Board of Education Building. (A. 138-139; 143). Immediately after the shot was fired, Maduro looked back into the shanty and saw blood coming from the victim’s head as he fell to the floor, (A. 143), while Simon stood over the body with the gun in his hand. Id. Maduro then saw Simon walk out of the Shanty and heard him say “that he ain’t want no witnesses.” (A. 133). B. In an effort to establish an alibi, the defense presented five witnesses, Simon’s mother, father, nephew, brother, and a family friend. Simon presented no other witnesses to establish his whereabouts at the time of the murder. Derrick Parker. Parker testified that he was a friend of James Simon, Hitson Simon’s brother, (A. 164), and that on Sunday, March 31, 1991, he and James had gone swimming down at the “bay” from approximately 10:00 or 11:00 in the morning until 2:00 in the afternoon. (167-168). At 2:00, Parker testified, Simon arrived' at the bay, took a brief swim and departed, (A. 170), heading up the road toward home at about 2:20 p.m. (A. 172, 174). Parker did not see Simon again that day. Id. James Simon. Hitson Simon’s older brother, James, testified that on March 31 he and Parker saw Simon at the bay at 2:00 p.m., (A. 178), and that Simon took a ten to fifteen minute swim, (A 179), before heading home at about 2:15. (A 180-181). James also testified that he arrived at the Simon home at 2:30 p.m. and that he saw his brother Hitson there ten minutes later. (A 182). James did not see Hitson again that day. (A. 183, 184). James testified further that it takes him twenty-five to thirty minutes to walk directly from the basketball court where the murder took place to the Simon home. (A 190). Hitson Philmore Andrew. Simon’s nephew, Hitson Andrew, testified that he lives with the Simon family, and that on March 31 he was at home between job shifts, from 2:30 p.m. until 5:00 p.m. (A 193, 194, 199). Andrew testified further that he saw Hitson at home on four different occasions that day: at 3:15 p.m., (A 195-196); at 3:30 to 3:40 p.m., (A 197), sometime after 3:40 p.m., (A 197-198); and at 4:30 p.m. (198-199). Detective Sergeant Reynald Fraser of the Virgin Islands Police Department testified that on the evening of March 31, Hitson Andrew told him that “he did not see Hitson for that entire day. He did not see him at all.” (A 249). On cross-examination, Andrew simply denied having made that statement to Detective Fraser. (A 209-210). Edith Simon. Simon’s mother, Edith Simon, testified that on March 31 she left home at 10:30 or 11:00 in the morning, and that she returned at about 1:30 in the afternoon. (A 212, 213). She also testified that, as she prepared to take a nap at 3:30 or 3:35 p.m., she saw her son “com[ing] through the dining room.” (A 213, 214). Ms. Simon testified further that she was awakened at 5:15 p.m. when the police arrived in search of her son. (A 216). According to Ms. Simon, she told the police that her son could not have committed the murder at the basketball court at 4:30 p.m., because a pot of food on his stove was hot when the police arrived at 5:15. (A 219-220). On cross-examination, Ms. Simon testified that she had not seen Hitson prior to 3:30 or so in the afternoon. (A 226). However, Sergeant Fraser testified that on March 31, Ms. Simon told him “that Hitson was home all day. He did not leave the house at all.” (A 250). At trial, Ms. Simon denied having made that statement to Fraser. (A 229). Nathaniel Simon. Simon’s father, Nathaniel, testified that when he was at home on the afternoon of March 31, he heard his son Hitson speaking to his grandson at ten minutes to four. (A. 234). He testified further that he saw his son on the family property at 4:03 p.m. (A. 236). On cross-examination, Mr. Simon could not explain why he so clearly remembered that particular time. (A 241). First, he stated, “I just remember it.” Id. Then, when asked whether he heard the time announced or was guessing at the time, Mr. Simon responded, “I ain’t guessing the time. I hear it on the radio, the radio upstairs.” (241-242). A few moments later, Mr. Simon testified that he did not hear the time announced on the radio, but that he was aware of the time, “4:03,” because he had looked at his watch. (A 242-243). On cross-examination, government counsel confronted Mr. Simon with two prior statements attributed to him by Sergeant Fraser: first, that he had not seen his son since breakfast on March 31, and, second, that he did know whether his son had left the house that day. (A 244-245). Mr. Simon simply denied having made both statements. (A 246). C. Following the presentation of evidence, the government submitted to the trial court a set of proposed jury instructions, with which counsel.for Simon concurred. On the issue of alibi, the proposed instruction read as follows: The defendant, HITSON SIMON, has asserted the defense of alibi as his defense to the murder and weapon charges. Evidence has been introduced tending to establish an alibi, which amounts to a contention that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the [indictment]. If, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you must acquit him. The jury will bear in mind the government’s burden of establishing the involvement of the defendant, and all other elements of the offense as defined in these instructions, by proof beyond a reasonable doubt. Government’s Request to Charge at 8 (An-ders brief, addendum at 11) (emphasis added). The trial judge, however, elected not to recite to the jury the government’s proposed alibi charge. Rather, the court gave the following instruction: You must consider all of the evidence in the case. You have heard witnesses presented from the prosecution and you have heard witnesses presented from the defense. You have to decide who you believe and how much of what is said by any witness you believe. You have heard witnesses who said that it was the defendant who shot Nicholson, and you have heard witnesses who said that Mr. Simon was in their sight or presence at various times, inconsistent with his allegedly being at the place and at the time where the homicide occurred. It is up to you. You have to determine from all of the evidence which you must consider, who you believe and how much of what is said by any witness you credit. (A 345-346) (emphasis added). Earlier in his charge to the jury, the trial judge had instructed that [t]he accused has no burden of proof under our system of laws, has no obligation to attempt to prove himself innocent of the charges. The prosecution has the only burden of proof in the case, and that burden of proof never shifts to a defendant, even if the defendant were to call witnesses. That burden of proof is proof beyond a reasonable doubt as to each essential element of the charge in each count. * * * * * * If you are persuaded that the government has met its burden of proof as to each essential element of a count, as to that count you should return a verdict of guilty. If you are not persuaded that the government has met its burden of proof as to any essential element of any count, as to that count you must return a verdict of not guilty. (A. 334-336) (emphasis added). Counsel for Simon objected to the jury instruction, noting that the government’s proposed charge had not been read and requesting the court to do so. (A. 350). After reviewing a copy of the government’s requested instruction, the trial court stated, “I did exactly that. I did not use the word ‘alibi.’ I will not.” Id. So instructed, the jury returned verdicts of guilty on both counts, murder in the first degree and possession of a dangerous weapon during the commission of a crime of violence. On October 16, 1991, Simon was sentenced to life imprisonment without suspension, parole or reduction in sentence as to the murder conviction, and to a concurrent term of ten years imprisonment on the “dangerous weapon” conviction, also to be served without suspension, parole or reduction. Simon timely appealed from the October 16, 1991 judgment and commitment entered by the district court. II. On appeal, counsel for Simon filed with this court a document styled, “Anders brief,” in which he argued that the trial court committed reversible error by failing to include the word, “alibi,” in its jury instruction. The “Anders brief’ was accompanied by counsel’s “Anders Motion to Withdraw Appeal.” In that motion, counsel claimed that “after diligent and exhaustive review of the case,” he was “unable to determine that any issue or error exists... which could be appealed; the probability or non-probability of success not being a factor in counsel’s review of the record.” Counsel lamented the refusal of Simon and his parents to permit an insanity defense. “Such a defense,” counsel suggested, “may have offered the only avenue for an acquittal at the trial level, or failing that, for an appeal to the appellate court.” Thus, counsel “move[d] that the instant appeal be dismissed as not having presented issues which are ripe for appeal.” The government, for its part, elected not to file a response to the Anders brief. Nevertheless, after conducting an independent review of the pertinent case law, this court, on its own, uncovered an apparent discrepancy between the trial court’s alibi instruction and the instruction required under the law of this circuit — a discrepancy having nothing to do with the absence of the word, “alibi.” This court has long held that where, as here, a defendant asserts the defense of alibi, a jury instruction must make clear that the defendant need only raise a reasonable doubt in the jurors’ minds as to whether he was present at the scene of the charged offense at the time the offense was committed. See United States v. Booz, 451 F.2d 719, 723 (3d Cir. 1971), cert. denied, 414 U.S. 820, 94 S.Ct. 45, 38 L.Ed.2d 52 (1973) (citing United States v. Barrasso, 267 F.2d 908, 910-911 (3d Cir. 1959)). Accordingly, a defendant is entitled to a specific instruction that “on the issue of alibi, the government ha[s] to convince the jury beyond a reasonable doubt that the alibi was not true.” Booz, 451 F.2d at 723. See also Barrasso, 267 F.2d 908, 910-911 (3d Cir.1959) (quoting United States v. Marcus, 166 F.2d 497, 503-504 (3d Cir.1948)) specific instruction must be given to inform the jury “that the government’s burden of proof covers the defense of alibi, as well as all other phases of the case”). We require such a specific instruction regarding an alibi defense because “the jury is likely to become confused about the burden of proof when an appellant offers this type of evidence.” Booz, 451 F.2d at 723. In light of the controlling precedent, this court instructed the parties to file supplemental memoranda on the issue of whether the trial court’s instruction conformed with Booz and Barrasso. Not surprisingly, Simon’s counsel — with the benefit of the dis-positive cases now before him — argued that the instruction given failed to conform to this court’s precedent and that, therefore, a new trial was required. The government agreed and confessed error on the issue of the alibi defense, conceding that the present case was indistinguishable from Booz and Barrasso. We, too, conclude that when the trial judge instructed the jury that “[y]ou have to decide who you believe and how much of what is said by any witness you believe,” the court failed to set forth the government’s burden of proof in relation to the alibi defense, as is expressly required under Booz and Barrasso. The trial court’s instruction in this case was similar in content to that given in Barrasso, a case in which we held the instruction to have been deficient. We reversed the district court’s judgment of conviction in Barrasso because the district court judge charged that “alibi, if you believe the testimony as to [the defendant’s] being elsewhere, is a perfectly good defense,” and that ‘Wfyou believe that, that ends it_” Barrasso, 267 F.2d at 910 (emphasis added). In Barrasso, as here, such an instruction “may well have suggested to the jury that the accused bore the burden of persuasion on the alibi defense,” id., and was, therefore, in error. Moreover, given Simon’s defense of alibi, the trial court’s failure to provide a “Booz-Barrasso charge” was not cured by the general instruction that the government must prove guilt beyond a reasonable doubt, (A. 334-336); nor was the district court’s error cured by the general admonition that the “burden of proof never shifts to a defendant.” (A. 334-336). Although this court adheres to the longstanding principle that a jury instruction must be read in its entirety, and that it must not be reviewed in fragmented form, out of the context of the entire trial, see Rock v. Zimmerman, 959 F.2d 1237, 1246 (3d Cir.), cert. denied sub nom. Rock v. Preate, — U.S. -, 112 S.Ct. 3036, 120 L.Ed.2d 905 (1992) (citing Estelle v. Mcquire, — U.S.-, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Hallowell v. Keve, 555 F.2d 103, 113 (3d Cir.1977)), in the special case of an alibi defense the jury charge on alibi must include a specific instruction setting forth the government’s burden of proof. See Booz, 451 F.2d at 723 (“The insufficiency of the charge of the trial court is not cured by the more general language in the charge that the burden never shifts from the government. This very contention was explicitly rejected in Barrasso.”); Barrasso, 267 F.2d at 910-11 (insufficient charge on alibi was not “cured by a quite proper and forceful general instruction stating in clear language that throughout the case the burden remains on the government to convince the jury of guilt beyond a reasonable doubt”). Our determination that the trial court erred by failing to give the requisite Booz-Barrasso charge does not, however, end our inquiry. Having concluded that the district court committed error, we next must determine whether that error requires reversal, or whether it was harmless. III. Although we inquired into the question of harmless error at oral argument, the parties had not yet briefed us on that issue, necessitating still another request for supplemental briefing. After having reviewed the arguments and having examined the entire record, we now conclude that the district court’s error, violative as it was of a clearly stated rule, was harmless on the facts of this case. A. The rule set forth in Booz and Barrasso is stated in supervisory terms. Indeed, neither opinion holds that the prescribed alibi instruction is constitutionally mandated. In articulating the harmless error standard for such nonconstitutional error, this court has held that, “ ‘[ujnless the appellate court believes it is highly probable that the error did not affect the judgment, it should reverse.’ ” Government of Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir.1975) (quoting R. Traynor, The Riddle of Harmless Error 35 (1970)). To constitute a ‘high probability,’ we must have a ‘sure conviction that the error did not prejudice the defendant.’ [United States v. Jannotti, 729 F.2d 213, 219-220 (3d Cir.1984), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984.) ] ‘On the other hand, we may be firmly convinced that the error was harmless without disproving every “reasonable possibility of prejudice.” ’ [Id. at 219-20 & n. 2 (quoting Traynor, supra, at 33-37, 44-45).] United States v. Asher, 854 F.2d 1483, 1500 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 836, 102 L.Ed.2d 969 (1989). Thus, in light of our holding that the district court erred in failing to craft the alibi instruction in accordance with the rule of Booz and Barras-so, our inquiry into harmless error is narrow: does the evidence placing Simon at the scene of the murder at the time it was committed render it highly probable that the error did not affect the judgment? See Toto, 529 F.2d at 283-84. Although we regard the district court’s error as non-constitutional in nature, we recognize that the improper alibi instruction also may be construed as “constitutional” error, to the extent that it suggests that the accused bears a burden of persuasion on the alibi defense. See Yates v. Evatt, — U.S. -,-, 111 S.Ct. 1884, 1892, 114 L.Ed.2d 432 (1991); Rose v. Clark, 478 U.S. 570, 575 n. 3, 106 S.Ct. 3101, 3104 n. 3, 92 L.Ed.2d 460 (1986); Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S.Ct. 2450, 2458-59, 61 L.Ed.2d 39 (1979); Patterson v. New York, 432 U.S. 197, 214-15, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Cf. Barrasso, 267 F.2d at 910; Booz, 451 F.2d at 723. In the present case, however, the distinction between constitutional and non-constitutional error is of no moment, because even if we were to apply the standard for constitutional error, we would hold that the district court’s failure to give the Booz-Bar-rasso charge was harmless. This court most recently discussed the standard for harmless “constitutional” error in United States v. Kenney, 992 F.2d 32, 35-36 (3d Cir.1993). “The test is whether the evidence is so overwhelming that it is beyond reasonable doubt that the verdict would have been the same” had the error not been committed. Id. at 35 (citing Yates, — U.S. at -, 111 S.Ct. at 1893-94). Recognizing that such an “enquiry cannot be a subjective one into the minds of the jurors,” Yates, — U.S. at-, 111 S.Ct. at 1893, the Supreme Court has advised us that to hold an error harmless is “to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” Id. (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Edüd 705 (1967)). After reviewing the record in this case, we conclude that the evidence placing Simon at the scene of the murder at the time it was committed renders it highly probable that the district court’s non-constitutional error did not affect the judgment, and that it was, therefore, harmless. See Toto, 529 F.2d at 283-84; Asher, 854 F.2d at 1500. Moreover, even if the failure to give the required Booz-Barrasso alibi instruction could be classified as constitutional error, which we hold it is not, we nevertheless would deem that error to be harmless because the evidence here is overwhelming, establishing Simon’s guilt beyond a reasonable doubt. See Kenney, 992 F.2d at 35. See also Yates, — U.S. at-, 111 S.Ct. at 1893; Rose v. Clark, 478 U.S. at 579, 106 S.Ct. at 3106. Thus, under either the non-constitutional standard of Toto or even the constitutional standard of Yates (if that standard were applicable, which it is not), the failure to give the Booz-Barrasso required alibi instruction, while error, was nevertheless harmless. B. As we have previously stated, four eyewitnesses, all of whom had known Hitson Simon for years prior to the murder, testified that Simon arrived at the basketball court in Stronne Gade at approximately 4:00 p.m. on March 31, 1991. Three eyewitnesses saw Simon enter the shanty where Nicholson lay sleeping. One witness saw him pull a gun wrapped in a white cloth from his waist as he approached the sleeping victim, and saw Simon standing over the mortally wounded and bleeding Nicholson immediately after the single shot was fired. All four eyewitnesses saw Simon emerge from the shanty immediately following the gunshot. Three testified that he had a pistol in his hand and that, before departing, admonished those present that there were to be “no witnesses.” Despite slight variations in their recollection or perception of immaterial details, the testimony of these four eyewitnesses consistently and compellingly placed Simon at the basketball court and inside the shanty at the time of the murder. Simon presented no evidence that might impugn the credibility of these eyewitnesses. The defense never challenged the means and opportunity of the witnesses to observe and recognize Simon, nor did the defense hypothesize or ascribe to the witnesses a motive to deliberately misidentify their friend and acquaintance, Hitson Simon, as the murderer. In his post-oral argument memorandum on harmless error, Simon identifies three alleged inconsistencies in the testimony of government witnesses. None of those purported inconsistencies, however, is fairly characterized as such, and none has any bearing on the sole, controlling evidentiary issue before us, that being Simon’s whereabouts when Nicholson was murdered. First, Simon cites the government witnesses’ apparently differing accounts of the time of the murder, ranging from 3:00 p.m. to 4:15 p.m. on March 31, 1991. Simon does not, however, dispute or otherwise challenge the most compelling and ultimately dispositive aspect of the witnesses’ testimony: all four consistently placed Simon inside the shanty at the precise moment the fatal shot was fired. Moreover, the belief that Simon arrived at the scene at around 4:00 p.m., just before the shooting occurred, was common to the testimony of each witness. Anthony Brewley testified that Simon arrived at “approximately 3:45 to 4:00 o’clock,” (A 74); Keith Harrigan testified that Simon arrived at “around 4:00,” (A 83); Jason Maduro testified that he saw Simon arrive at “[a] little after 4:00 o’clock,” (A. 121), and Jefferson Titus, who offered the widest ranging time-frame, testified that he saw Simon at “3:00 o’clock, 4:00 o’clock, something like that.” (A 102). Second, Simon argues that the government witnesses “were inconsistent as to how many times they each claimed that the appellant appeared [on March 31, 1991] on the basketball court where the incident occurred.” Rather than demonstrating inconsistency, however, the witnesses’ testimony merely reflected their varied experiences on March 31. While they each may have seen Simon once, twice or three times prior to the shooting that day, what is dispositive here is that each and every government witness placed Simon in the shanty at the time Nicholson was murdered. Finally, Simon claims that the witnesses “were inconsistent as to the number and identity of the persons who supposedly were in the shanty at the time the homicide occurred.” Simon refers to the witnesses’ uncertainty as to whether Jason Maduro (“Tayo”) and another man known as “Junior” were inside or just outside the shanty when Nicholson was killed. Again, however, Ma-duro’s and Junior’s location in relation to the shanty is entirely irrelevant to the dispositive issue here of whether Simon was present at the time of the murder. Moreover, any disparity among the witnesses on this issue appears to be attributable to the distinctive configuration of the shanty — which, at least on one side, seems to have lacked a clear point of demarcation between “interior” and “exterior” — rather than to “inconsistent” testimony. For example, Jefferson Titus testified that Maduro and Junior “were parallel to the shanty, on the outside of the shanty, right next to where you could walk to go inside.” (A 113). Titus stated further that “[t]hey were like a part of it [the shanty], you know, because the rock — like the shanty is here (indicating), and then the big stone is right here from the shanty. And you could look straight across and go into it, too, if you wanted to.” (A 117). According to Titus, from where Maduro and Junior were located, they could reach their hands out into the shanty. Id. On the other hand, Simon presented five “alibi” witnesses: his mother, father, brother, nephew and a family friend. The credibility of three of those witnesses — the mother, father and nephew — was cast into substantial doubt by Detective Sergeant Fraser, whose testimony attributed to each of them prior statements that contradicted or were inconsistent with their testimony at trial. In his post-argument harmless error memorandum, Simon fails to address or account for the testimony of Detective Sergeant Fraser. Instead, Simon simply states in conclusory terms that the “defense witnesses were all consistent in their recollections” as to Simon whereabouts at the time of the murder, and that their testimony, therefore, was “clear and believable.” The testimony of Simon’s other two witnesses failed to establish an alibi altogether. Derrick Parker last saw Simon at 2:20 p.m. on March 31, and brother James last saw him at home at 2:40 p.m. Given James’ testimony that it takes a maximum of thirty minutes to walk between the Simon home and the basketball court, there simply is no conflict between his and Parker’s testimony and the eyewitness accounts of Simon’s arrival at the basketball court at 4:00 p.m. Thus, in light of all of the evidence considered by the jury — the eyewitness testimony placing Simon at the scene of the murder at the time it was committed; the suspect credibility of three “alibi” witnesses; and the failure of two others to support the alleged alibi time-frame — we conclude that the error committed by the district court in failing to instruct the jury on alibi, as we have required under both Booz 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. NORTHROP CORPORATION v. McDONNELL DOUGLAS CORPORATION, Appellant. No. 84-5215. United States Court of Appeals, District of Columbia Circuit. Argued Oct. 29, 1984. Decided Dec. 28, 1984. Robert M. Lucy, St. Louis, Mo., with whom Daniel C. Schwartz and Penny Q. Seaman, Washington, D.C., were on the brief, for appellant. Freddi Lipstein, Atty., Dept, of Justice, Washington, D.C., with whom Richard K. Willard, Asst. Atty. Gen., Dept, of Justice, Joseph E. diGenova, U.S. Atty., and Barbara L. Herwig, Atty., Dept, of Justice, Washington, D.C., were on the brief, for appellee. Before WILKEY, WALD, and SCA-LIA, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD. Circuit Judge Wilkey considered this case prior to his taking Senior status. WALD, Circuit Judge: McDonnell Douglas Corporation (“MDC”) appeals from an order of the United States District Court for the District of Columbia denying MDC’s motion to compel discovery and quashing subpoenas du-ces tecum directed to the United States Departments of Defense (“DOD”) and State (“State”). We affirm the district court’s order as it applies to the subpoena directed to DOD, but vacate and remand the order as it applies to the subpoena directed to State. I. Background MDC’s pursuit of discovery against DOD and State stems from its ongoing litigation with Northrop Corporation (“Northrop”) regarding the development and sale of variations of the YF-17 military aircraft, Northrop Corp. v. McDonnell Douglas Corp., CA No. 79-04145R (C.D.Cal. filed Oct. 26, 1979). The United States is not a party to this litigation. The facts of the underlying action, which is being heard by the United States District Court for the Central District of California, are set out in Northrop Corp. v. McDonnell Douglas Corp., 498 F.Supp. 1112 (C.D.Cal.1980), rev’d in part and remanded, 705 F.2d 1030 (9th Cir.), cert. denied, — U.S.-, 104 S.Ct. 156, 78 L.Ed.2d 144 (1983); we present here only a brief summary of the facts relevant to this appeal. Northrop and MDC, two major defense contractors, entered into a “teaming agreement” to develop two variations of the YF-17, one to be land-based and the other for use on aircraft carriers (the latter was purchased by the U.S. Navy and designated the F-18). According to the terms of the agreement, MDC was to be the prime contractor for the domestic and foreign sales of the aircraft carrier variation, with Northrop acting as a substantial subcontractor, and Northrop was to be the prime contractor for the land-based variation of the YF-17. While MDC has sold its F-18s to the U.S. Navy and at least three foreign governments, Northrop has not been able to sell any of its variations of the aircraft. Brief for Appellant at 5-6. Northrop sued MDC claiming, inter alia, that MDC violated the terms of the teaming agreement, interfered with Northrop’s efforts to sell its version of the YF-17, and violated the antitrust laws. MDC has asserted as part of its defense that Northrop’s inability to sell any of the land-based YF-17s is the result of actions by the United States government, not MDC. In furtherance of that defense, on December 21, 1983, MDC subpoenaed DOD, State, and the Departments of the Air Force and the Navy for documents relating to sale of various military equipment to Iran, Canada, Australia, Spain, Turkey, Sweden, Israel and the Federal Republic of Germany, generally covering the period from January, 1977, to the present. The Departments of the Air Force and the Navy complied with the subpoenas to MDC’s satisfaction. DOD produced 3000 pages of documents to MDC and, on March 26, 1984, claimed that 1200 more pages of responsive documents were privileged as state or military secrets. Brief for Appellant at 14. Initially, State also produced some documents, but then on January 31, 1984, filed an objection to the subpoena on the grounds of burdensomeness. State ultimately claimed that 967 cubic feet of documents would have to be searched to comply with the subpoena, and that such a search would involve hundreds of worker hours. Further, State claimed that many of the responsive documents would be classified and subject to the state secrets or deliberative process privileges, and that a declassification review would involve yet additional hundreds of worker hours. Appendix to Brief for Appellant (“Appendix”) at 272, 277. In response to DOD’s claim of privilege and State’s claim of oppressiveness, MDC moved to compel production of the documents from both parties. The district court held a one-day hearing on the motion. In a one-page order the court denied MDC’s motion to compel and quashed the subpoenas. This appeal followed. II. Analysis MDC claims that the district court erred in quashing the subpoenas directed to DOD and State. As to DOD, MDC contends that the district court, given MDC’s representations of the importance of the documents to MDC’s defense, should have conducted an in camera review of the documents to determine whether the state secrets privilege was properly invoked. MDC further asserts that the district court should not have permitted DOD’s assertion of the state secrets privilege because it did not establish the requisite likelihood that harm would result in the event of disclosure. As to State, MDC appeals the court’s order quashing the subpoena on grounds of burdensomeness. According to MDC, State did not adequately demonstrate the oppressiveness required to quash the subpoena, particularly in light of MDC’s asserted need for the documents, the unavailability from other sources of the information contained in those documents, and the complexity of the underlying Northrop litigation. In evaluating a trial court’s exercise of discretion in discovery matters, we have observed that [a] district court has broad discretion in its resolution of discovery problems that arise in cases pending before it____ [T]he scope of appellate review is equally narrow when the discovery pertains to litigation pending elsewhere. In Re Multi-Piece Rim Products Liability Litigation, 653 F.2d 671, 679 (D.C.Cir. 1981). We may reverse the trial court only if it has abused its discretion; that is, if its actions were clearly unreasonable, arbitrary or fanciful. Id. Giving the district court due deference, we find it properly exercised its discretion in accepting DOD’s claim of privilege, but that its action in quashing the State subpoena in its entirety, without adequate consideration of whether it might be modified so as to diminish the burden, was unreasonable and an abuse of discretion. A. DOD’s Claim of Privilege The “state secrets” privilege asserted by DOD is a privilege developed in common law protecting information vital to the nation’s security or diplomatic relations. See Advisory Comm. Note to Proposed Fed.R.Evid. 509, reprinted in 56 F.R.D. 194, 252 (1972); E. Cleary, McCormick on Evidence § 107 (3d ed. 1984). It is an absolute privilege which, when properly asserted, cannot be compromised by any showing of need on the part of the party seeking the information. The seminal judicial statement on the privilege appears in United States v. Reynolds, 345 U.S. 1, 73 5. Ct. 528, 97 L.Ed. 727 (1953). Reynolds establishes the procedure which must be followed for the privilege to be properly invoked: “[1] There must be a formal claim of privilege, [2] lodged by the head of the department which has control over the matter, [3] after actual personal consideration by that officer.” Id. at 7-8, 73 S.Ct. at 531-532 (footnotes omitted). The inherent dilemma presented by the privilege, as recognized by the Reynolds Court, is that a court must “determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.” Id. at 8, 73 S.Ct. at 532 (footnotes omitted). We reiterate at the outset that a party’s need for the information is not a factor in considering whether the privilege will apply. As we have stated, courts in evaluating claims for the privilege may take cognizance of the need for the information demonstrated by the party seeking disclosure, [but] such need is a factor only in determining the extent of the court’s inquiry into the appropriateness of the claim. Once the court is satisfied that the information poses a reasonable danger to secrets of state, “even the most compelling necessity cannot overcome the claim of privilege.” Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir.1982) (footnote omitted) (“Halkin II”) (quoting Reynolds, 345 U.S. at 11, 73 S.Ct. at 533). Therefore, MDC’s representations of the importance of the government documents to its defense in the Northrop litigation are relevant only to the question of whether the district court adequately assessed DOD’s assertion of the privilege. Reviewing the documents submitted to the court in support of DOD’s claim, we find that the district court did not abuse its discretion in holding that the privilege was adequately asserted. According to the procedure established by Reynolds, DOD properly made its claim to the state secrets privilege. In an affidavit, the head of the department, Secretary of Defense Weinberger, stated that he had reviewed a representative sample of the documents as well as affidavits of staff members who had received all of the documents, and based on this knowledge he “assert[ed] a formal claim of privilege in order to protect certain military and state secrets relating to the national defense and the national security of the United States Affidavit and Claim of Privilege of the Secretary of Defense (“Weinberger Affidavit”) ¶ 2, Appendix at 282-83. The affidavit states that “[t]he Department of Defense has in its possession seven linear inches of classified documents responsive to the subpoena.” Weinberger Affidavit ¶ 5, Appendix at 284. The documents, “all of which have been classified pursuant to appropriate executive orders and DOD regulations,” fall into the general categories of: Communications with foreign government officials (letters and memoranda of conversations); letters between DOD and the Secretary of State or the White House; studies of force structures of foreign countries; DOD briefing books and papers for meetings with foreign government officials; internal papers and recommendations relating to military aircraft sales to foreign countries, sales terms, coproduction arrangements, and related matters; Defense Intelligence Agency reports; and correspondence with Members of Congress regarding the sale of military aircraft. Weinberger Affidavit ¶6, Appendix at 285. Secretary Weinberger asserts that “disclosure of this material to McDonnell Douglas and Northrop would have specific adverse and irreparable effects upon the national security and international relations of the United States.” Weinberger Affidavit ¶ 7, Appendix at 286. The harms alleged in the affidavit that could result from disclosure are: The impairment of diplomatic relations if the confidence of communications with foreign governments is breached; adverse effects on our relations with Iran; adverse effects on relations with countries getting less favorable treatment on sales terms for military equipment; revelation of military secrets and defenses of foreign countries which in turn threatens the security of the United States; and exposure of sources of intelligence information. Each of the alleged harms is correlated to the document over which the privilege is claimed. Weinberger Affidavit ¶¶ 7-10, Appendix at 286-89. Relying on Reynolds, MDC contends that the district court did not examine the privilege claim carefully enough, given the importance of the documents to MDC’s defense. See Reynolds, 345 U.S. at 11, 73 S.Ct. at 533 (“In each case, the showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the claim is appropriate.”). The apparent basis for MDC’s contention is that the district court denied the motion to compel on the day immediately following its one-day hearing. Certainly MDC’s claimed need for the documents is substantial; asserting a defense of government action will be more difficult without the government’s own records of that action. But even if the lack of these documents made MDC’s case impossible, MDC would still not be entitled to overcome a valid assertion of the state secrets privilege. See Halkin II, 690 F.2d at 997-98, 999-1000. And while the order came swiftly, that in itself is no cause for presuming it was not,the product of a considered judgment. MDC suggests that before ruling on the motion to compel, the district court should have conducted an in camera review of the documents over which privilege was claimed. While we have recognized the value of such examinations in the context of privilege claims, see, e.g., Halkin v. Helms, 598 F.2d 1, 5 (D.C.Cir.1978) ("Halkin I"), the procedure is not required as a matter of course in a claim of the state secrets privilege. Reynolds explicitly addressed this issue. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers. 345 U.S. at 10, 73 S.Ct. at 533. Our opinion in Ellsberg v. Mitchell, 709 F.2d 51 (D.C.Cir.1983), cert. denied, - U.S., 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984), established a sliding scale to determine when a court may, or should, make an in camera examination of material over which a claim of the state secrets privilege is made: When a litigant must lose if the claim [of privilege] is upheld and the government's assertions are dubious in view of the nature of the information requested and the circumstances surrounding the case, careful in camera examination of the material is not only appropriate but obligatory. When the litigant requesting the information has made only a trivial showing of need for it and the circumstances of the case point to a significant risk of serious harm if the inforthation is disclosed, the trial judge should evaluate (and uphold) the privilege claim solely on the basis of the government's public representations, without an iiz camera examination of the documents. Id. at 59 nfl. 37-38 (citations omitted). MDC's claim falls somewhere in between the two extremes. The government's assertions are more than dubious, and MDC's need for the information is more than trivial, though not absolute. Although an in camera inspection might have been appropriate, we cannot say that the trial court erred when it decided the balance tipped in favor of the government, and quashed the subpoena without conducting an in camera review of the documents. The Secretary's affidavit alone, MDC contends, does not adequately demonstrate that the national security or international relations will be harmed by the disclosure of the information MDC seeks. MDC suggests that even though the information involved is sensitive, there is no threat that its production in this litigation will do harm because the disclosure will be limited to participants with adequate security clearances. The trustworthiness of the litigants, however, is not always dispositive in cases such as this. There is no single rule which will determine when disclosure will present a harm to national interests. The grounds for finding such harm will vary from case to case, depending upon the nature of the information at issue, to whom it will be disclosed, and the means available to limit its dissemination. The latter two circumstances are not decisive in the present case. The trial court in the underlying action has issued a protective order establishing procedures for handling information related to the case which may not be publicly disclosed. Northrop and MDC have subscribed to the terms of that order. See Appendix at 203-08. To the extent that sensitive information can be protected in litigation, then, we can assume it would be protected here. The party seeking the information, MDC, and its adversary, Northrop, have in the past been entrusted by the government with classified information necessary to their performances of government contracts. Whether this past practice means they should also be entrusted with classified policy information related to their dispute is a matter of contention between MDC and the government which we do not find it necessary to resolve, because we believe that the nature of the information at issue here justified the district court’s decision to accept DOD’s claim of privilege. The documents MDC seeks concern foreign governments’ plans and policies for their national defense systems, and our government’s involvement in those areas. DOD credibly asserts that such inter-government communications about defense systems are made with every expectation of confidentiality on both sides. Equally credibly, DOD asserts that our government’s ability to conduct relations with these countries in the future would be harmed by the disclosure, however protected, of the most confidential information a country can possess: the details of its national security system. Regardless of the availability of protective orders or “need-to-know” mechanisms, we believe that the district court acted within reason when it decided that this disclosure would present a danger of harm to foreign relations and national security. Without setting forth any absolute rule that communications with or about foreign governments are always immune, we accept as a reasonable justification of the district court’s action that in this instance disclosure, regardless of the attendant safeguards, in itself might harm U.S. foreign relations and national security. According to the standards established by Reynolds and this court’s interpretation of Reynolds, all DOD must show is a reasonable danger that harm will result from disclosure. See Ellsberg, 709 F.2d at 58; Halkin II, 690 F.2d at 990; Halkin I, 598 F.2d at 9. It is not necessary for the government to show that harm will inevitably result from disclosure, nor, as MDC argues, is it an essential element that the disclosure be public. “The crucial aspect of [the various] formulation[s] of the test [determining whether the requisite degree of certainty that harm is threatened] is the [court’s] willingness to credit relatively speculative projections of adverse consequences.” Ellsberg, 709 F.2d at 58 n. 35. And in evaluating these “speculative projections,” “[c]ourts should accord the ‘utmost deference’ to executive assertions of privilege upon grounds of military or diplomatic secrets.” Halkin I, 598 F.2d at 9 (quoting United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). Deference to the executive’s allegations of harm does not mean unquestioning acceptance of every claim of privilege. See Reynolds, 345 U.S. at 9-10, 73 S.Ct. at 532-533 (“Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”) We have recognized that drawing the line between an adequate description of the privileged material and divulging the secrets themselves is not a simple task. In Halkin I, we said that simply identifying certain individuals as having been subject to government communications monitoring presented “a reasonable danger that state secrets would be revealed.” Halkin I, 598 F.2d at 9. In the present case, identifying documents as being withheld because Country X will discover that it received less favorable terms than Country Y on an arms sale agreement obviously does as much damage as revealing the documents themselves. In sum, DOD has adequately asserted the state secrets privilege, and the district court did not act unreasonably in accepting DOD’s claim. B. State’s Claim of Burdensomeness The district court’s order also denied MDC’s motion to compel discovery and quashed the subpoena directed against State. We hold that the district court abused its discretion in issuing that order. A trial court may, on a motion by the party seeking relief, quash or modify a subpoena for the production of evidence, on the ground that the request is unreasonable or oppressive. See Fed.R. Civ.P. 45(b)(1). “What constitutes unreasonableness or oppression is, of course, a matter to be decided in the light of all the circumstances of the case ____” 5A Moore’s Federal Practice ¶ 40.05[2] n. 44. A trial court has broad, but not unlimited, discretion in evaluating the circumstances of a case when considering quashing a subpoena on grounds of oppressiveness. It must carefully examine the circumstances presented to it and, when appropriate, consider the possibility of modifying the subpoena rather than quashing. The burden of proving that a subpoena is oppressive is on the party moving to quash. Westinghouse Electric Corp. v. City of Burlington, Vt., 351 F.2d 762 (D.C.Cir.1965). This is a heavy burden, and one which State has not met in the present case. Because State’s claim of oppressiveness is in large part based on its assertion that many of the documents sought by the subpoena will be privileged, and therefore not subject to compelled production, it must adequately demonstrate that applicable privileges would in fact protect these documents. In addition, the district court must give appropriate consideration to the possibility of modifying the subpoena, to accommodate the interests of both MDC and the government. We stressed the importance of the modification alternative in our decision in Westinghouse. Westinghouse, a defendant in a treble damages antitrust action, served a subpoena duces tecum on a representative of the U.S. Attorney General, seeking records of complaints from utility owners about antitrust violations by electrical equipment manufacturers. Westinghouse sought this information to dispute plaintiffs’ claim that the statute of limitations should be tolled because Westinghouse had fraudulently concealed the alleged violations. The United States was not itself a party to the treble damages action. The government moved to quash the subpoena on the grounds that it was oppressive and that in any case the documents sought were protected by the informer’s privilege. The trial court granted the motion to quash, but this court reversed, finding that the record did not support the government’s claim of oppressiveness. See id. at 767. We held in Westinghouse that the government, as the party seeking to quash, had not met its burden of establishing that the subpoena was unreasonably oppressive. The district court had erred because [t]he two affidavits submitted by [the government] are not sufficient to bear this burden. Appellants [Westinghouse] have expressed their willingness to accept some reasonable effort by the Government, that would be less than a page-by-page search. The lower court, in these circumstances, should have sought some way to accommodate the interests of the defendants herein with the practical problems of searching the Government’s voluminous files. Nothing in the record suggests that the possibility of making a less than complete search was explored. Id. at 766 (footnotes omitted). The Westinghouse court went on to suggest that, as an aid to the trial court in evaluating the oppressiveness of the subpoena, the government could conduct a partial search of its files “to determine how productive and how onerous a search of the complete file would be.” Id. at 767. Westinghouse is relevant to the present case in several ways. First, MDC has, as did appellants in Westinghouse, expressed its willingness to modify the subpoena. See Appendix at 128, 130. The district court was also informed that the California court hearing the underlying action had established an accelerated discovery schedule and was not disposed to grant any further postponements. See Transcript at 7; see also Appendix at 95. This additional factor presented an even stronger case for modification than the circumstances of Westinghouse. To facilitate the progress of the underlying litigation, the district court should have at least explored the possibility of modifying the subpoena in a manner which would meet both MDC’s and State’s immediate needs. Second, Westinghouse made clear that “[t]he burden of proving that a subpoena duces tecum is oppressive is on the party moving for relief on this ground____ The burden is particularly heavy to support a ‘motion to quash as contrasted to some more limited protection.’ ” Westinghouse, 351 F.2d at 766 (quoting Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir.1961)). State has not adequately carried that burden here. Certainly the volume of documents it claims it must search is extraordinary, but volume alone is not determinative. See Democratic Nat’l Comm. v. McCord, 356 F.Supp. 1394, 1396 (D.D.C.1973); 5A Moore’s Federal Practice ¶ 45.05[2] n. 44. State concedes that its files are organized topically and geographically, see Appendix at 263, so there apparently exists some systematic way of conducting the search. According to State, though, the compelling reason for finding the subpoena oppressive is that “it would be necessary to claim privilege over a high proportion of the documents” once retrieved. Brief for Appellees at 43. To support this reasoning, State must demonstrate, with more certainty than it has here, that privileges would in fact be claimed over a substantial percentage of the documents. The privileges which State claims will protect many of the documents produced, the state secrets and deliberative process privileges, are narrowly drawn privileges which must be asserted according to clearly defined procedures. See supra p. 400. The procedure for claiming the state secrets privilege includes a statement by the head of the department responsible for the documents that they have been examined and that disclosure would be against the public interest. See Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 531-532; Ellsberg, 709 F.2d at 56-57. Clearly, documents which have not yet been retrieved have not yet been examined or considered by the head of the department. It is premature for State to assert or even insinuate a claim of the state secrets privilege over these documents. It is equally untenable to claim the deliberative process privilege over the documents. That privilege, unlike the absolute state secrets privilege, is relative to the need demonstrated for the information. See Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 327 (D.D.C. 1966), aff'd, 384 F.2d 979 (D.C.Cir.), cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). The litigant’s need for the information cannot be balanced against its sensitive and critical role in the government’s decisionmaking process without any indication of what that information is. Any claim that the documents would be protected by this privilege is purely speculative. Third, in Westinghouse and Freeman v. Seligson, 405 F.2d 1326 (D.C.Cir.1968), we suggested the possibility that conducting partial searches, or samplings, of voluminous files containing potentially privileged information would be an appropriate aid to evaluating oppressiveness claims. This proposal is particularly well-suited to the difficult problem posed by this case: How can a court evaluate the oppressiveness of a subpoena when the requesting party has demonstrated the relevance of the documents and a need for them, and the objecting party asserts that production of the document will be burdensome and not fruitful for the requesting party because privilege will make many nondiscoverable? To force State to conduct a complete search and then raise a formal claim of privilege would, in this instance, defeat the purpose of allowing oppressiveness as a defense to subpoenas issued under Fed.R.Civ.P. 45. A sampling procedure appears to us to be a sound alternative to the illogical alternative of requiring State to conduct a full search of its files. Although State presented the district court with the results of a sample search of its files, see Brief for Appellees at 42, Appendix at 271, we find that this sample fails in at least four ways. First, State has not indicated how the files examined are representative of the files identified in the subpoena. The subpoena requests documents from four offices at State; yet the declaration of the person reviewing the sample for classification purposes does not indicate which office(s) the sample was drawn from, only that it consisted of “several hundred readily available responsive documents.” Declaration of Thomas W. Ainsworth, Appendix at 276. The sample may in fact represent a cross-section of all the named offices, or it may represent only one. To adequately evaluate the sample, a court must know that it is representative of all the sources named in the subpoena. Second, no precise indication is made of what percentage of the documents in the sample are likely to be privileged. The declaration offered by State only tells us that “the sample contains a high proportion of currently classified national security information____” Appendix at 276. To be of any value to a court assessing a sampling, such a statement would have to indicate what percentage of the documents would be subject to the privilege, recognizing that not all classified information will necessarily be withheld from production. Third, State does not indicate why the sample can be expected to contain a typical proportion of documents likely to be privileged. It seems entirely plausible that some files will consist almost exclusively of documents containing state or military secrets, while other files will be almost entirely devoid of such materials. Selecting either type of file as the exclusive basis for a sample would distort the picture of the overall fruitfulness of a search. Because this variable can exist within a single office as well as in the department as a whole, State must indicate that the sample it offers contains a typical proportion of potentially privileged documents based on the universe it represents. In the circumstances of the present case, a valid sample on which a trial court could make an adequate assessment of the burden of full compliance with a subpoena would have to include at least the following information. First, it must adequately describe and demonstrate how the sample is representative of all the sources identified in the subpoena. If a variety of sources are named, as in MDC’s subpoena to State, this may require independent samplings for each source to properly represent the underlying universe of documents. Second, the sample must state what percentage of documents are likely to be privileged. The court reviewing the sample can then determine if that proportion is “high” enough to support a claim of burden. Third, the sample must demonstrate that the percentage of potentially privileged documents in the sample can be expected to represent the percentage in the underlying universe. Again, this may mean that a single sample will not adequately represent the composition of all the files subpoenaed. If one source has a particularly high (or low) concentration of potentially privileged documents, it might need to be considered separately from any “overall” claims. Additionally, a valid sample should include estimates of the time and labor involved in complying with the subpoena and the basis of these estimates. In the sample offered to the district court, State did estimate the amount of labor that retrieval and review of the documents requested by MDC would take. See Appendix at 272-73, 277. Establishing the representativeness of the sample does not end State’s burden. State’s present projection of the state secrets privilege is made by individuals not qualified to formally assert the state secrets privilege. Their speculation that the Secretary would assert a claim of privilege if presented with the documents is not acceptable; this fourth defect alone defeats any validity an otherwise proper sample might have. The direct involvement of the head of the department is essential to a valid sample. In this instance the Secretary would have to review the possibly privileged documents in the sample and formally assert that he would make a claim of privilege over them if they were to be produced. As with an actual assertion of privilege, the Secretary’s statement would have to include a description of the documents he has considered and the potential threat posed by the disclosure of the information. Additionally, there should be a statement by an appropriate official describing the basis for believing that similarly privileged documents exist in the files not searched. Clearly, this sampling procedure does not replace the requirements established in Reynolds for a formal claim of the state secrets privilege. To make a proper claim of the military or state secrets privilege, State would have to make a complete examination of its files, and present the court with a formal claim by the Secretary that after considering the documents he has determined that the privilege should be invoked. A proper claim of privilege, if accepted by the court, would absolutely protect the documents from discovery, regardless of the degree of MDC’s need for them. See Reynolds, 345 U.S. at 11, 73 S.Ct. at 531. The sampling procedure we set forth is a mechanism by which a court can evaluate a claim of oppressiveness based on both the large number of files to be searched and the likelihood that such a search will not be productive because so many of the materials sought will be privileged. Unlike the state secrets privilege, a claim of oppressiveness is not an absolute protection against discovery. The need of the party seeking the documents is a relevant factor in considering a claim of oppressiveness, see, e.g., Multi-Piece Liaability Litigation, 653 F.2d at 679-80, and a case may arise where the need is great enough to overcome a claim such as State’s here. In that instance it would be necessary for the executive department involved, to protect any state or military secrets contained in its files, to follow the Reynolds procedure and make a formal claim of privilege. We do not at this point express any opinion on whether MDC has established such a need. As in Westinghouse, “[w]e do not now hold that the broad subpoena sought by the defendants should be enforced; but we instruct the trial judge to reconsider... the possibility of reaching an accommodation between [the parties in the discovery action].” Westinghouse, 351 F.2d at 765. At least two options are available to the district court in its reconsideration of State’s claim of oppressiveness. First, it may order a modification of the subpoena, based on the facts and claims the court has already heard. There seem to be ample grounds for immediately effecting some form of modification 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_usc1	18	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. James HARRIS, Defendant-Appellant. No. 73-1179. United States Court of Appeals, Sixth Circuit. Argued June 11, 1973. Decided June 28, 1973. J. Kimbrough Johnson, Jr. (Court Appointed) Memphis, Tenn., for defendant-appellant. Robert F. Colvin, Memphis, Tenn., for plaintiff-appellee; Thomas F. Turley, Jr., U. S. Atty., Johnnie L. Johnson, Jr., Asst. U. S. Atty., W. D. Tenn., Memphis, Tenn., on brief. Before McCREE and MILLER, Circuit Judges and NEESE, District Judge. The Honorable C. G. Neese, United States District Judge for the Eastern District of Tennessee, sitting by designation. PER CURIAM. We consider an appeal from a judgment entered January 5, 1973 on a jury verdict convicting defendant on the second of two counts of an indictment charging a violation of the Mann Act, 18 U.S.C. § 2421. The indictment charged defendant with knowingly transporting in interstate commerce from Memphis, Tennessee to Detroit, Michigan two females, Edith Davis and a girl, Myra White, who was not 18 years old, for the purpose of prostitution, debauchery and other immoral purposes. The issues raised on appeal are: 1) Was there substantial evidence to support a jury verdict that defendant’s dominant purpose for the trip was for prostitution and debauchery? 2) Did the U. S. District Court err by instructing the jury that the dominant motive for transporting the females, as distinguished from the dominant motive of the trip, is the essential element of the offense? The evidence showed that appellant, a Memphis resident, owns several parcels of rental property in Detroit. On January 21, 1972, he traveled to Detroit for the purpose of making repairs on some of his properties and took with him Myra White and Edith Davis, whom he picked up at a bus stop. Defendant was also accompanied by George Anthony, who agreed to assist appellant in making the repairs. Anthony was a co-defendant in the trial below and was acquitted. The women testified that appellant forced them to attempt to solicit men at a truck stop in Ohio and later at cafes in Detroit. Defendant testified that the women accompanied him solely for the pleasure of his company and denied forcing them to perform acts of prostitution at any time during the trip from Memphis to Detroit. Appellant contends that the Supreme Court has interpreted the Mann Act to proscribe the interstate transporting of women for the purpose of prostitution only if the dominant purpose of the escorting defendant in making the trip is the commission of immoral acts. He relies on the following language from Mortensen v. United States, 322 U.S. 369, 374, 64 S.Ct. 1037, 1040, 88 L.Ed. 1331 (1944): “An intention that the women or girls shall engage in the conduct outlawed by Section 2 must be found to exist before the conclusion of the interstate journey and must be the dominant motive of such interstate movement. And the transportation must be designed to bring about such result.” The trial judge disagreed with appellant’s interpretation of Mortensen and focused not on the purpose of the trip but instead upon the purpose of defendant in transporting the females. In his charge he instructed the jury as follows: “. . . I charge you that it is necessary that it be shown that in transporting or causing to be transported one or both of these females, the defendants’ dominant motive in transporting or causing to be transported was prostitution, debauchery or other immoral purpose or practice. It is not necessary that it be shown that the dominant motive in making the trip so far as a defendant is concerned is for that purpose, but it is necessary to show, as I say, that the dominant motive of the defendant in transporting the female was for that purpose.” We agree with the district court, and determine that the charge is free from error. The quotation from Mortensen must be read in context, and it is clear from such reading that the Supreme Court was not concerned with the purpose of the escorting defendants in making the interstate trip, but instead with their purpose in transporting the women who were concededly prostitutes. This interpretation is clear from the Supreme Court’s statement of the issue in Mortensen — “The primary issue before us is whether there was any evidence from which the jury could rightly find that petitioners transported the girls from Salt Lake City to Grand Island for an immoral purpose in violation of the Mann Act.” 322 U.S. at 373, 64 S.Ct. at 1040. The Supreme Court expressed no concern about any other purpose the defendants might have had for making the trip. In fact, it was conceded that their purpose was an innocent one, and if appellant here is correct, that concession would have made unnecessary the determination of the issue quoted above. This construction of the Mann Act is consistent with the rationale of United States v. Hon, 306 F.2d 52 (7th Cir. 1962), relied on by appellant. There, the court in reversing a conviction, said: “. . . The dominant motive of their interstate movement was not an intention that the woman should be transported in interstate commerce for the purpose of prostitution.” 306 F.2d at 55. (Emphasis supplied.) It is clear in Hon that the focus of the statute is on the purpose for the transporting of the woman. • This is the rule of our circuit and we reaffirm it here. See United States v. Salter, 346 F.2d 509 (6th Cir. 1965). We determine from an examination of the record that there was ample evidence to support the jury’s verdict. Affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_district	C	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". MORGAN v. UNITED STATES. No. 3383. Circuit Court of Appeals, Tenth Circuit. Jan. 14, 1947. John P. Fullerton, of Lawton, Okl. (Charles G. Ozmun, of Lawton, on the brief), for appellant. Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl. (Robert E. Shelton, Asst. U. S. Atty., of Oklahoma City, Okl., on the brief), for appellee. Before BRATTON, HUXMAN and HURRAH, Circuit Judges. HUXMAN, Circuit Judge. The appellant, Walter Ray Morgan, was charged by information in the United States District Court for the Western District of Oklahoma with violation of Section 223, Title 27 U.S.C.A. In Count 1 of the amended information he was charged with the illegal transportation in interstate commerce of intoxicating liquors from the State of Texas into the State of Oklahoma. Count 2 chai-ged him with aiding and assisting in the illegal interstate transportation of the liquor in question into Oklahoma. He was found not guilty on Count 1 and guilty on Count 2. He has appealed from the judgment of the court. Two errors are urged for reversal. They are: (Í) That the court erred in refusing to sustain appellant’s motion to supress evidence; (2) That the court erred in failing to sustain appellant’s motion for a directed verdict as to both counts of the information. Morgan was stopped by two agents of the Alcohol Tax Unit a short distance out of Lawton, Oklahoma, about 9 o’clock p. m. on December 12, 1945, as he was driving toward the city. The officers stopped him and searched his car and found approximately twenty cases of liquor in the car. The search was made without a search warrant. In order to sustain its legality, the officers must have been in possession .of such facts and inferences to be drawn therefrom as would lead a reasonably prudent and intelligent person to conclude that there was good ground to believe that the law was being violated. The facts from which probable cause justifying such a search must be found are substantially these: A. T. (Jack) Cobb operated a place where whiskey was sold at 1103 Washington Avenue, Lawton, Oklahoma. R. B. Mogridge and William M. Pauly, two .Alcohol Tax Unit men, upon whose testimony the conviction rests, testified substantially as follows: On October 1, 1945, they went to Cobb’s place, introduced themselves, and told Cobb that they wanted to check if he had a retail liquor dealer’s stamp; that théy saw appellant Morgan make a sale of whiskey while they were there; that there was a 1941 Plymouth Coupe with a Texas tag F.D. 6733 at the place; that on October 12 they were in the place again making observations; that appellant Morgan came out the front door and in a conversátion with them stated that business was not very good and that he was taking out, and that he thought Jack was taking out; that at that time they noticed the Plymouth car with a different Texas license tag, C/N 1508, on it. Mo-gridge testified that on December 12, 1945, he received an anonymous telephone call that the Plymouth coupe was going or had gone to Texas after a load of whiskey; that he recognized the voice, having heard it before over the phone and having received from it at other times information in regard to liquor law violations, which had proved reliable. He testified that he considered the information reliable and acted on it. After receiving this tip, the two officers kept the place under observation until about 8:30 p. m., when they drove to a wye on the highway about six miles south of town where the car in question shortly passed them, going toward Lawton. They drove up alongside the car and recognized Morgan as the driver. They stopped him and Pauly got out of the car and Mogridge drove the officers’ car in front of the Morgan car. Pauly testified that after he got out, but while Morgan was still sitting in the car, he asked him, “Morgan, how much you got?” to which Morgan replied, “A little.” That after Mogridge came up, but before they searched the car, Morgan admitted that he had twenty cases; that then Morgan asked if there was not some way that he could fix it up. They then informed him that they would have to take him in. They asked him to open the back of the car and he said the keys were in the car. The officers then took the keys, searched the car, and found the whiskey. Probable cause to validate the search without a warrant must be deduced from these facts. Again, there lurks in the background the question whether probable cause may be predicated upon information from an undisclosed source. But the decision does not turn upon this question alone, because while Morgan was still in the car he admitted to Pauly that he, had whiskey in the car. This was before he was placed under arrest. This admission alone would warrant the officers in searching the car. Up to that point he had been merely stopped by the officers and was being interrogated, and in response to questions, made voluntary admissions that he had whiskey in the car. He was not being threatened with force or violence or intimidated or coerced in any way at the time. Under these circumstances his admissions constituted, probable cause warranting the search without a warrant. Since the jury acquitted appellant of the charge under Count 1, it is not necessary to consider whether the court erred in refusing to sustain the motion for a directed verdict as to Count 1. Whether it was error to overrule a like motion as to Count 2 presents a more serious question. Count 2 charged appellant with aiding and assisting in the unlawful transportation of liquor in interstate commerce from Texas to Oklahoma. The only other facts bearing on this question are substantially these: Mogridge testified that: “I said, ‘Well, Walter, where did you get it?’ He said, ‘Down the way.’ * * * I asked him again, ‘Where did you get it?’ and he said, ‘Down the way.’ I said, ‘When did you leave ?’ And he said, ‘Ten o’clock.’ I said, ‘From Fort Worth, Texas?’ He didn’t answer me, and I then took the keys out of the car. * * * I took the keys and opened the back of the car and saw some whiskey. Some of the whiskey bore the marks of The Glazier Wholesale Drug Company of Fort Worth, Texas. And I stated to Mr. Pauly in the prisoner’s presence, T see the whiskey came from Fort Worth, Texas.’ The defendant stated it came from Fort Worth. * * * I said, Where did you get this whiskey?’ I said, Walter, I saw the Fort Worth address on it.’ He said, ‘Yes, it came from Fort Worth. This is my last load.’ ” One cannot aid and abet in the commission of a crime unless there is another who has committed the offense. In other words, one cannot be an aider and abettor of himself in the commission of an offense. Obviously, therefore, one cannot be found guilty under a charge of aiding and abetting in the commission of an offense unless there is satisfactory evidence not only of his participation but also that another for whom he was acting was connected with the offense. It has been held that where one is charged with aiding and abetting it is necessary that the indictment name the person or state that his name is unknown. All that Count 2 charged was that appellant did assist in transporting liquor from Texas to Oklahoma. No attempt was made therein to state for whom he was acting or that the name of such person was unknown. While the failure to challenge the legal sufficiency of the second count may have waived this defect in the indictment, it did not relieve the government from the necessity of proving for whom appellant was hauling this liquor or at least that he was hauling it for some one else. No attempt was made to directly show for whom he was transporting this liquor. The record and brief of the government are silent as to who the government contends was the principal whom Morgan was aiding and assisting in the transportation of the liquor. It may be argued that the circumstantial facts in the case show that he was hauling it for Cobb. The evidence does establish that Cobb was operating a place where liquor was sold and that the Plymouth car in question was seen about the place at various times and that Cobb drove it. But Morgan and his wife lived in a cabin at the place. Other parties also lived there. Morgan drove the car, as also did a woman, who no doubt was Morgan’s wife. No attempt was made to establish the ownership of the ear, and we do not know whether it belonged to Cobb or to Morgan. The mere fact that Morgan was apprehended with some whiskey in a Plymouth car, the ownership of which is unknown, coming toward Lawton, is insufficient to prove that he was taking it to Cobb’s place or that he was hauling it for Cobb rather than for himself. To sustain a verdict of guilty based on circumstantial evidence, the circumstances must not only be consistent with guilt but they must be inconsistent with innocence. Measured by this yardstick, the circumstantial evidence is wholly insufficient to establish that Morgan did aid or assist another in the interstate transportation of the liquor in question. The motion for a directed verdict as to Count 2 should have been sustained, and the judgment is accordingly reversed. Pearson v. United States, 10 Cir., 150 F.2d 219; Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Director General v. Kastenbaum, 263 U.S. 25, 44 S.Ct. 52, 68 L.Ed. 146; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; United States v. One 1941 Oldsmobile, 10 Cir., 158 F.2d 818. State v. Haines, 51 La.Ann. 731, 25 So. 372, 44 L.R.A. 837; Tillman v. Commonwealth, 259 Ky. 73, 82 S.W.2d 222; 14 Am.Jur., Criminal Law, Sec. 76; Mulligan v. Commonwealth, 84 Ky. 229, 1 S.W. 417. Mulligan v. Commonwealth, 84 Ky. 229, 1 S.W. 417; State v. St. Philip, 169 La. 468, 125 So. 451; Wimpling v. State, 171 Md. 362, 189 A. 248; State v. Stone, 109 W.Va. 721, 156 S.E. 80; 31 C.J., Indictments & Informations § 289; 42 C.J.S., Indictments & Informations, § 147; United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819. United States Fidelity & Guarantee Co. v. Des Moines Nat. Bk., 8 Cir., 145 F. 273; Mutual Life Ins. Co. of New York v. Zimmerman, 5 Cir., 75 F.2d 758; Pruitt v. Hardware Dealers Mut. Fire Ins. Co., 5 Cir., 112 F.2d 140; New York Life Ins. Co. v. Prejean, 5 Cir., 149 F.2d 114; 20 Am.Jur., Evidence, Sec. 1189. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_circuit	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. STEELE v. HARRISON et al. Court of Appeals of District of Columbia. Submitted April 3, 1929. Decided May 6, 1929. Petition for Rehearing Denied May 25, 1929. No. 4746. Walter C. Balderston and Leonard J. Mather, both of Washington, D. C., for appellant. R. B. Dickey, of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. The appellant as plaintiff in the lower court filed a bill of complaint against the appellees, praying that a certain deed of conveyance theretofore executed by her be set aside upon the ground of fraud and also upon the ground that it was obnoxious to the proviso of section 1155, D. C. Code (then iu force), providing that no married woman shall have power to make any contract as surety or guarantor. The lower court heard the evidence and dismissed appellant’s bill. This appeal is now prosecuted upon a record containing the pleadings and the substance of the evidence heard by the trial court. We have carefully considered both pleadings and evidence, and we are convinced that the controlling facts in the case are in substance as follows: On May 15, 1926, the appellant, Elsie A. Steele, was, and still is, a married woman, the wife of Lewis P. Steele, and was the owner as tenant in common with Blanche A. Davis of certain real estate situate in the District of Columbia, subject to certain trust incumbrances which are not in question in this case. At that time appellant’s husband Lewis P. Steele, and William E. Davis, husband of appellant’s cotenant Blanche A. Davis, were partners engaged in the real estate business in the District of Columbia, and were in need of funds with which to meet their obligations. They accordingly formulated a plan of having their wives place a trust deed upon the aforesaid property wherewith to secure funds for the use of the partnership. Pursuant to this plan appellant and her cotenant, acting under the direction of their husbands, on May 15, 1926, executed and delivered to Francis L. Davis, brother of said William E. Davis, a deed of conveyance in fee simple for the real estate aforesaid, without any consideration whatever- moving to the grantors. On the same day said Francis L. Davis executed a deed of trust upon the property to> appellees Raymond B. Dickey and Sidney B. Harrison, to secure one H. L. Timbelake in the sum of $7,355. On May 25, 1936, however, this trust was released of record, and on the same day a trust deed was executed to the same trustees to secure the firm of Davis & Steele, in the same sum, to wit, $7,355> and this obligation was indorsed by Davis & Steele to Sue K. Harrison. On the same day, to wit, May 25, 1926, Francis L. Davis reconveyed the property to appellant and her eotenant subject to the aforesaid trust in favor of Steele and Davis in the sum of $7,355. The appellant’s bill of complaint attacks the deed of conveyance executed by her and. her cotenant to Francis L. Davis and prays that it he set aside on the ground that appellant was induced to sign the same by the fraudulent representations of certain of the appellees. This charge, we think, is not sustained by the evidence. Appellant also attacks the deed of trust placed by Francis L. Davis upon the property to secure Steele and Davis in the sum of $7,355, upon the ground that the trust deed if sustained would subject her property as security for the indebtedness of Steele and Davis, thus obligating her as an accommodation surety for them in violation of the proviso of section 1155, D. C. Code (since repealed [see 44 Stat. 676]) which provided that no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser. We think the latter contention of appellant should he sustained. The circumstances surrounding the transaction in question give unmistakable proof of the fact that Francis L. Davis, as grantee in the deed of conveyance, was acting merely as the agent and trustee of appellant and her cotenant in order to place a trust upon their property to serve as security for the debts of their husbands. This was evidently done in order to escape the express provisions of the statute prohibiting such suretyship. Equity, however, looks through the form of the transaction to its substance, and in such case as this the.law follows the equitable rule. It results accordingly that the trust given by Francis L. Davis is subject to the same infirmities as if given directly by appellant, and is therefore void. In Waters v. Pearson, 39 App. D. C. 10, 16, Chief Justice Shepard spoke for this court as follows: “1. Section 1155 of the Code (31 Stat. at L. 1374, chap. 854) confers general power upon married women to engage in business, to contract, to sue separately, etc., as fully and freely as if unmarried, but concludes with this proviso: ‘That no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser.’ By this proviso married women were prohibited from binding themselves as surety for others. But the limitation would be of little or no benefit if it could be evaded by the mere form of the contract entered into. If the mere form of the contract, making the married woman appear as a principal* instead of a surety, would serve to prevent judicial investigation of the real nature of her obligation, the provision of the statute would become a dead letter. The statute declares a rule of public policy and its object is to be executed by courts of law as well as equity. Any one may defend an action on a contract by proof that it is in violation of a statute. E. Bement & Sons v. National Harrow Co., 186 U. S. 76-88, 22 S. Ct. 747, 46 L. Ed. 1058-1068. See Fisk Rubber Co. v. Muller, 42 App. D. C. 49; Schwartz v. Sacks, 55 App. D. C. 87, 2 F.(2d) 188; Howard v. Quinn, 55 Wash. Law Rep. 527, affirmed Bradbury v. Howard, 58 App. D. C. 383, 31 F.(2d) 222. Tbe decree of the lower court is reversed with costs, and this cause is remanded for such further proceedings as are not inconsistent herewith. Reversed. 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_r_natpr	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 "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. COMMISSIONER OF INTERNAL REVENUE v. CLEVELAND ADOLPH MAYER REALTY CORPORATION. No. 10363. Circuit Court of Appeals, Sixth Circuit. April 14, 1947. SIMONS, Circuit Judge, dissenting. I. Henry Kutz, of Washington, D. C. (Sewall Key, J. Louis Monarch, and Helen Goodner, all of Washington, D. C., on the brief), for petitioner. Irwin N. Loeser, of Cleveland, Ohio (Irwin N. Loeser and Daniel W. Loeser, both of Cleveland, Ohio, on the brief), for respondent. Before HICKS, SIMONS, and MILLER, Circuit Judges. HICKS, Circuit Judge. Petitioner, Commissioner of Internal Revenue, seeks a review of the decision of the Tax Court that there are deficiencies in income 'tax due by the taxpayer, Cleveland Adolph Mayer Realty Corporation, the respondent, for the years 1940, 1941 and 1942, in the respective amounts of $677.63, $950.55 and $1021.19. Upon its organization in 1938, the taxpayer acquired a building ‘which, conced-edly, had been constructed by its predecessor in 1915 at a cost of $131,565.96. Until December 21, 1939, the taxpayer and its predecessor had taken depreciation on the building' at- the rate of 3% annually upon a supposed cost of $165,000, excepting six months of the year 1915 and the full years of 1916, 1917 and 1921, when no depreciation was claimed and no deduction therefor allowed. The 3% depreciation rate was figured on a thirty-three and a third year life for the building. As of January 1, 1940, the parties agreed that the allowance for depreciation should be based upon a fifty year life. As indicated above, income taxes for the years 1940, 1941 and 1942 are here involved. Our question is: How to arrive .at an adjusted basis on December 31, 1939 for depreciating the remaining twenty-five years of the life of the building, in view of the three and a half years, when no depreciation was taken. The Commissioner and the taxpayer deducted from the $131,565.96 cost the depreciation reserve which had been claimed for the years 1918-20 and for 1922-39, inclusive, at the rate of 3% on the supposed -$165,000 cost, but they failed to agree on the rate to be used in calculating the depreciation for the period for which none had been claimed or allowed. The taxpayer insisted that the calculation should be made at the rate of 2% upon the cost price of $131,565.96 since both parties agree that 'the building had a life of fifty years. The Commissioner asserted that the 3% rate should be used, since depreciation is to be calculated on the facts known at the end of each year and since in the tax periods in question the building had a supposed life of thirty-three and a third years. If the 2% rate is used, the depreciation for the three and a half years (six months in 1915, all of 1916, 1917 and 1921) in which none was taken, would, on December 21, 1939, aggregate $9209.60 with a total recovered cost of $113,059.60. If the 3% rate is used, the aggregate would be $13,-814.43, with a total recovered cost of $117,-764.43. Under the taxpayer’s claim, unde-preciated cost on December 31, 1939, would be $18,406.36, and under the Commissioner’s insistence, $13,801.53. If the larger base is used the allowance for the tax years 1940, 1941 and 1942 would be larger and the tax less. The Commissioner, using the smaller base, determined deficiencies for 1940-1-2. The Tax Court, following its own decision in Mutual Fertilizer Co." v. Commissioner, 5 T.C. 1122, decided that the depreciation “allowable” for the years 1915, 1916, 1917 and 1921 should be computed at the revised rate of 2%; whereupon the Commissioner sought review. ■ The applicable statutes are Sec. 23(1) and Sec. 113(b) (1) (B) of the Internal Revenue Code, (26 U.S.C.A. Int.Rev.Code, §§ 23(1), 113(b) (1) (B). Sec. 23(1) provides in part: “Sec. 23. In computing net income there shall be allowed as deductions: * * H* * * * “(J) Depreciation. - A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business * * * ” , Sec. 113(b) (1) (B)-reads in part: “(b) Adjusted basis. "The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall-be the basis determined under subsection (a), adjusted as hereinafter provided. “(1) General Rule. Proper adjustment in respect of the property shall in all cases be made— ****** “(B) in respect of any period since February 28, 1913, for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent allowed (but not less than the amount allowable) under this chapter or prior income tax laws. * * * ” (Italics ours.) Treasury Regulations 103, Sec. 19.113(b) (1)-1 (and the same section in effect in T. R. Ill), provide in part: “ * , * * A taxpayer is not permitted to take advantage in a later year of his prior failure to take any depreciation allowance. * * * The determination of the amount properly allowable shall, however, be made on the basis of facts reasonably known to exist at the end of such year or period. * * * ” (Italics ours.) Treasury Regulations 103, Sec. 19.23(1)-5 providing “Method of computing depreciation allowance” (and the same section in éffect in T.R. Ill) provide in part: “ * * * The reasonableness of any claim for depreciation shall be determined upon the conditions known to exist at the end of the period for which the return is made. * * * "A taxpayer is not permitted wider the law to take advantage in later years of his prior failure to take. any depreciation allowance. * * * ” (Italics ours.) The Commissioner insists that in utilizing the 2% rate, the Tax Court erroneously failed to apply the regulations. There is nothing in the Tax Court’s decision indicating that it considered the regulations at all. In Mutual Fertilizer Co. v. Commissioner, supra, the majority opinion made'no reference to the regulations and that it considered them at all appears only from a statement in the dissenting opinion of Judge Disney, to-wit, “As I view this situation, the .majority opinion disregards the regulation without.saying that it is invalid; # $ * » In that case the majority opinion simply stated: “The case is one in which a twenty-year useful life period1 was mistakenly applied in 1934 and it now appears that the proper life span was at all times thirty-three years. In the circumstances we think it must be held that the depreciation ‘allowable’ for -the years in question should be computed upon the longer useful life period.” The opinion concluded: “However, under the circumstances here present, the depreciation allowable for the open years on the basis of the shorter useful life should, we think, give way to that allowable under a computation based upon the corrected life span.” The question whether the decision of the Tax Court is in accordance with law when tested by the provisions of the statutes, and especially of the regulations, is clearly presented. Trust of Bingham v. Commissioner, 325 U.S. 365, 370, et seq., 65 S.Ct. 1232, 89 L.Ed. 1670; John Kelley Co. v. Commissioner, 326 U.S. 521, 66 S.Ct. 299; Dobson v. Commissioner, 320 U.S. 489, 64 S. Ct. 239, 88 L.Ed. 248. The statute, Sec. 113(b). (1) (B), has been in effect since 1932. Sec. 19,113 (b) (1)-1 has been included in the regulations since 1934 and Sec. 19.23 (l)-5 since 1921, during which time the statutory sections have been repeatedly re-enacted without change. In Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52, it was said: “Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.” Moreover, it affirmatively appears that in considering the 1932 amendment to Sec. 113(b) (1) (B), the Senate Finance Committee, S.Rep. 665, 72nd Congress, 1st Sess., p. 29, approved the regulations. Its report appears in part: “Your committee has not thought it necessary to include any express provision against retroactive adjustments of depreciation on the part of the Treasury as the regulations of the Treasury seem adequate to protect the interests of the taxpayers in such cases. These regulations require the depreciation allowances to be made from year to year in accordance with the then known facts, and do not permit a retroactive change in these allowances by reason of the facts developed or ascertained after the years by .which such allowances are made.” (Italics ours.) Since no claim for depreciation was made in 1915-16-17 and 1921, no depreciation was “allowed.” The question presented therefore is, what depreciation was “allowable?” The answer is found in Sec. 19.113(b) (1)-1, T.R. 103, to wit: “The determination of the amount properly allowable * * * shall be made on the basis of facts reasonably known to exist at the end of such year or period.” This language refers to conditions known or existing at the time and not those ascertained years later, and the Tax Court gave no reason for disregarding the regulation and permitting conditions ascertained years later to control the rate and hence the amount of allowable depreciation for those years. The Circuit Court of Appeals, for the Fifth Circuit in reversing the decision of the Tax Court in Commissioner v. Mutual Fertilizer Co., supra, 159 F.2d 470, 472, said: “The error of The Tax Court lies in its majority’s view that it ‘now appears’, years after the end of the periods for which ‘allowable’ amounts' must be determined, that 33 years is and was the foreseeable useful life of the plant assets. The crucial factor is not what ‘now appears’, hut what ‘then appeared’ to he the useful life of the plant; that is, what reasonably was known and ascertainable at the end of each of such periods as to the reasonably foreseeable useful life of the plant.” (Italics ours.) See also Goss & DeLeeuw Mach. Co. v. United States, D.C., 53 F.Supp., 853. Indeed, the Supreme Court in Virginian Hotel Corp. v. Helvering, 319 U.S. 523, 525, 63 S.Ct. 1260, 1261, 87 L.Ed. 1561, 152 A.L.R. 871, in a discussion preliminary to its consideration of the main question, makes it abundantly clear that the amount ■“allowable” for depreciation must be taken ■“each year.” We quote: “ * * * The basis upon which depreciation is to be ‘allowed’ is the cost of the property with proper adjustments for depreciation ‘to the extent allowed (but not less than the amount allowable) under this Act or prior income tax laws.’ That provision makes it plain that the depreciation basis is reduced by the amount ‘allowable’ each year whether or not it is claimed. * * * Moreover the basis must be reduced by that amount even though no tax benefit results from the use of depreciation .as a deduction. Wear and tearr do not wait cm net income. Nor can depreciation be .accumulated and held for use in that year in which it will bring the taxpayer the most tax benefit. Congress has elected to make .the year the unit of taxation. * * * Thus the amount ‘allowable’ must he taken each year. * * * ” (Italics ours.) See discussion in United States v. Ludey, 274 U.S. 295, 300, 301, 47 S.Ct. 608, 71 L. Ed. 1054; Kittredge v. Commissioner, 2 Cir., 88 F.2d 632; United States Industrial Alcohol Co. v. Helvering, 2 Cir., 137 F.2d 511, 517. And if depreciation is to be taken each year, it must perforce be taken upon the basis of the understanding of value, .existing at that time (at the end of the accounting period), and not, as has been said in the light of “hindsight.” The decision of the Tax Court is reversed and the cause remanded for further proceedings not inconsistent herewith. Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. 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. WYOMING v. HOUGHTON No. 98-184. Argued January 12, 1999 Decided April 5, 1999 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Thomas, and Breyer, JJ., joined. Breyek, J., filed a concurring opinion, post, p. 307. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined, post, p. 309. Paul S. Rehurek, Deputy Attorney General of Wyoming, argued the cause for petitioner. With him on the briefs were Gay Woodhouse, Acting Attorney General, and D. Michael Pauling, Senior Assistant Attorney General. Barbara McDowell argued the cause for as amicus curiae urging reversal. With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. Donna D. Domorikos, by appointment of the Court, 525 U. S. 980, argued the cause for respondent. With her on the brief were Sylvia Lee Hackl and Michael Dinnerstein. Briefs of amici curiae urging reversal were filed for the State of Kentucky et al. by Albert B. Chandler III, Attorney General of Kentucky, Matthew Nelson, Assistant Attorney General, Dan Schweitzer, and John M. Bailey, Chief State’s Attorney of Connecticut, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E, Lwngren of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Gus F. Diaz of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vasco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, and Jan Graham of Utah; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the National Association of Police Organizations by Stephen R. McSpadden. urging affirmance were filed for the Legal Aid Society of New York City et al. by M. Sue Wycoff; for the National Association of Criminal Defense Lawyers by Paul Mogin and Lisa B. Kern-ler; and for the Rutherford Institute by Steven H. Aden and John W. Whitehead. Justice Scalia delivered the opinion of the Court. This case presents the question whether police officers violate the Fourth Amendment when they search a passenger’s personal belongings inside an automobile that they have probable cause to believe contains contraband. I In the early morning hours of July 23, 1995, a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light. There were three passengers in the front seat of the car: David Young (the driver), his girlfriend, and respondent. While questioning Young, the officer noticed a hypodermic syringe in Young’s shirt pocket. He left the occupants under the supervision of two backup officers as he went to get gloves from his patrol ear. Upon his return, he instructed Young to step out of the car and place the syringe on the hood. The officer then asked Young why he had a syringe; with refreshing candor, Young replied that he used it to take drugs. At this point, the backup officers ordered the two passengers out of the ear and asked them for identification. Respondent falsely identified herself as “Sandra James” and stated that she did not have any identification. Meanwhile, in light of Young’s admission, the officer searched the passenger compartment of the car for contraband. On the back seat, he found a purse, which respondent claimed as hers. He removed from the purse a wallet containing respondent’s driver’s license, identifying her properly as Sandra K. Houghton. When the officer asked her why she had lied about her name, she replied: “In case things went bad.” Continuing purse, brown pouch and a black wallet-type container. Respondent denied that the former was hers, and claimed ignorance of how it came to be there; it was found to contain drug paraphernalia and a syringe with 60 ccs of methamphetamine. Respondent admitted ownership of the black container, which was also found to contain drug paraphernalia, and a syringe (which respondent acknowledged was hers) with 10 ccs of methamphetamine — an amount insufficient to support the felony conviction at issue in this ease. The officer also found fresh needle-track marks on respondent’s arms. He placed her under arrest. The State of Wyoming possession of methamphetamine in a liquid amount greater than three-tenths of a gram. See Wyo. Stat. Ann. §35-7-1031(c)(iii) (Supp. 1996). After a hearing, the trial court denied her motion to suppress all evidence obtained from the purse as the fruit of a violation of the Fourth and Fourteenth Amendments. The court held that the officer had probable cause to search the car for contraband, and, by extension, any containers therein that could hold such contraband. A jury convicted respondent as charged. The Wyoming Supreme Court, by divided vote, reversed the conviction and announced the following rule: “Generally, once probable cause is established to search a vehicle, an officer is entitled to search all containers therein which may contain the object of the search. However, if the officer knows or should know that a container is the personal effect of a passenger who is not suspected of criminal activity, then the container is outside the scope of the search unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection.” 956 P. 2d 368, 872 (1998). The court held that the search of respondent’s purse violated the Fourth and Fourteenth Amendments because the officer “knew or should have known that the purse did not belong to the driver, but to one of the passengers,” and because “there was no probable cause to search the passengers’ personal effects and no reason to believe that contraband had been placed within the purse.” Ibid. We granted certio-rari, 524 U. S. 983 (1998). II The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular governmental action, violates this provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed. See Wilson v. Arkansas, 514 U. S. 927, 931 (1995); California v. Hodari D., 499 U. S. 621, 624 (1991). Where that inquiry yields no answer, we must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. See, e. g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652-653 (1995). It is uncontested in the ease had probable cause to believe there were illegal drugs in the car. Carroll v. United States, 267 U. S. 132 (1925), similarly involved the warrantless search of a car that law enforcement officials had probable cause to believe contained contraband — in that case, bootleg liquor. The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799 — as well as subsequent legislation from the founding era and beyond — that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty. Id., at 150-153. See also United States v. Ross, 456 U. S. 798, 806 (1982); Boyd v. United States, 116 U. S. 616, 623-624 (1886). Thus, the Court held that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant” where probable cause exists. Carroll, supra, at 153. We have furthermore that the Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers within an automobile. In Ross, supra, we upheld as reasonable the warrantless search of a paper bag and leather pouch found in the trunk of the defendant’s ear by officers who had probable cause to believe that the trunk contained drugs. Justice Stevens, writing for the Court, observed: "It is noteworthy that the early legislation on which the Court relied in Carroll concerned the enforcement of laws imposing duties on imported merchandise. . . . Presumably such merchandise was shipped then in containers of various kinds, just as it is today. Since Congress had authorized warrantless searches of vessels and beasts for imported merchandise, it is inconceivable that it intended a customs officer to obtain a warrant for every package discovered during the search; certainly Congress intended customs officers to open shipping containers when necessary and not merely to examine the exterior of cartons or boxes in which smuggled goods might be concealed. During virtually the entire history of our country — whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile — it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search.” Id., at 820, n. 26. Ross summarized its holding as follows: "If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id., at 825 (emphasis added). And our later cases describing Ross have characterized it as applying broadly to all containers within a car, without qualification as to ownership. See, e. g., California v. Acevedo, 500 U. S. 565, 572 (1991) (“[TJhis Court in Ross took the critical step of saying that closed containers in ears could be searched without a warrant because of their presence within the automobile”); United States v. Johns, 469 U. S. 478, 479-480 (1985) (Ross “held that if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search”). no passenger in Ross, and it was not claimed that the package in the trunk belonged to anyone other than the driver. Even so, if the rule of law that Ross announced were limited to contents belonging to the driver, or contents other than those belonging to passengers, one would have expected that substantial limitation to be expressed. And, more importantly, one would have expected that limitation to be apparent in the historical evidence that formed the basis for Ross’,s holding. In fact, however, nothing in the statutes Ross relied upon, or in the practice under those statutes, would except from authorized warrantless search packages belonging to passengers on the suspect ship, horse-drawn carriage, or automobile. Finally, we must derlying the rule announced in Ross is fiilly consistent — as respondent’s proposal is not — with the balance of our Fourth Amendment jurisprudence. Ross concluded from the historical evidence that the permissible scope of a warrantless car search “is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” 456 U. S., at 824. The same principle is reflected in an earlier case involving the constitutionality of a search warrant directed at premises belonging to one who is not suspected of any crime: “The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” Zurcher v. Stanford Daily, 486 U. S. 547, 556 (1978). This statement was illustrated by citation and description of Carroll, 267 U. S., at 158-159, 167. 436 U. S., at 556-557. In sum, neither Ross nor relied upon admits of a distinction among packages or containers based on ownership. When there is probable cause to search for contraband in a ear, it is reasonable for police officers — like customs officials in the founding era — to examine packages and containers without a showing of individualized probable cause for each one. A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car. Even if the historical evidence, as described by Ross, were thought to be equivocal, we would find that the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger’s belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which “trave[l] public thoroughfares,” Cardwell v. Lewis, 417 U. S. 583, 590 (1974), “seldom serv[e] as ... the repository of personal effects,” ibid., are subjected to police stop and examination to enforce “pervasive” governmental controls “[a]s an everyday occurrence,” South Dakota v. Opperman, 428 U. S. 364, 368 (1976), and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny. degree of intrusiveness upon personal privacy and indeed even personal dignity — the two cases the Wyoming Supreme Court found dispositive differ substantially from the package search at issue here. United States v. Di Re, 332 U. S. 581 (1948), held that probable cause to search a ear did not justify a body search of a passenger. And Ybarra v. Illinois, 444 U. S. 85 (1979), held that a search warrant for a tavern and its bartender did not permit body searches of all the bar’s patrons. These eases turned on the unique, significantly heightened protection afforded against searches of one’s person. “Even a limited search of the outer clothing . . . constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Terry v. Ohio, 392 U. S. 1, 24-25 (1968). Such traumatic consequences are not to be expected when the police examine an item of personal property found in a car. Whereas the passenger’s privacy expectations are, as we have described, considerably diminished, the governmental interests at stake are substantial. Effective law enforcement would be appreciably impaired without the ability to search a passenger’s personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the ear. As in all car-search eases, the “ready mobility” of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained. California v. Carney, 471 U. S. 386, 390 (1985). In addition, a car passenger — unlike the unwitting tavern patron in Ybarra — will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. Cf. Maryland v. Wilson, 519 U. S. 408, 413-414 (1997). A criminal might be able to hide contraband in a passenger’s belongings as readily as in other containers in the ear, see, e. g., Rawlings v. Kentucky, 448 U. S. 98, 102 (1980) — perhaps even surreptitiously, without the passenger’s knowledge or permission. (This last possibility provided the basis for respondent’s defense at trial; she testified that most of the seized contraband must have been placed in her purse by her traveling companions at one or another of various times, including the time she was “half asleep” in the car.) a search will not always be present, but the balancing of interests must be conducted with an eye to the generality of cases. To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger’s belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a “passenger’s property” rule would dramatically reduce the ability to find and seize contraband and evidence of crime. Of course these requirements would not attach (under the Wyoming Supreme Court’s rule) until the police officer knows or has reason to know that the container belongs to a passenger. But once a “passenger’s property” exception to car searches became widely known, one would expect passenger-confederates to claim everything as their own. And one would anticipate a bog of litigation — in the form of both civil lawsuits and motions to suppress in criminal trials — involving such questions as whether the officer should have believed a passenger’s claim of ownership, whether he should have inferred ownership from various objective factors, whether he had probable cause to believe that the passenger was a confederate, or to believe that the driver might have introduced the contraband into the package with or without the passenger’s knowledge. When balancing the competing interests, our determinations of “reasonableness” under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak. Finally, if we were cal practice that Ross accurately described and summarized, it is perplexing why that exception should protect only property belonging to a passenger, rather than (what seems much more logical) property belonging to anyone other than the driver. Surely Houghton’s privacy would have been invaded to the same degree whether she was present or absent when her purse was searched. And surely her presence in the car with the driver provided more, rather than less, reason to believe that the two were in league. It may ordinarily be easier to identify the property as belonging to someone other than the driver when the purported owner is present to identify it — but in the many cases (like Ross itself) where the ear is seized, that identification may occur later, at the station house; and even at the site of the stop one can readily imagine a package clearly marked with the owner’s name and phone number, by which the officer can confirm the driver’s denial of ownership. The sensible rule (and the one supported by history and case law) is that such a package may be searched, whether or not its owner is present as a passenger or otherwise, because it may contain the contraband that the officer has reason to believe is in the car. •fí ^ We hold that police officers with probable cause to search a car may inspect passengers’ belongings found in the ear that are capable of concealing the object of the search. The judgment of the Wyoming Supreme Court is reversed. It is so ordered. The dissent begins its analysis, post, at 309-310 (opinion of Stevens, J.), with an assertion that this ease is governed by our decision in United States v. Di Re, 332 U. S. 581 (1948), which held, as the dissent describes it, that the automobile exception to the warrant requirement did not justify “searches of the passenger’s pockets and the space between his shirt and underwear,” post, at 309. It attributes that holding to “the settled distinction between drivers and passengers,” rather than to a distinction between search of the person and search of property, which the dissent claims is “newly minted” by today’s opinion — a “new rule that is based on a distinction between property contained in clothing worn by a passenger and property contained in a passenger’s briefcase or purse.” Post, at 309, 309-310. Jackson’s opinion in Di Re, which makes it very clear that it is precisely this distinction between seareh of the person and search of property that the ease relied upon: “The Government says warrant for a residence only, it could search all persons found in it. But an occupant of a house could be used to conceal this contraband on his person quite as readily as can an occupant of a car.” 332 U. S., at 587 (quoted post, at 312). Does the dissent really believe that Justice was house search could not inspect property belonging to persons found in the house — say a large standing safe or violin case belonging to the owner’s visiting godfather? Of course that'is not what Justice Jackson meant at all. He was referring precisely to that “distinction between property contained in clothing worn by a passenger and property contained in a passenger’s briefcase or purse” that the dissent disparages, post, at 309. This distinction between searches of the person and searches of property is assuredly not “newly minted,” see post, at 310. And if the dissent thinks “pockets” and “clothing” do not count as part of the person, it must believe that the only searches of the person are strip searches. The dissent is “confident in a police officer's ability to apply a rule requiring a warrant or individualized probable cause to search belongings that are ... obviously owned by and in the custody of a passenger,” pout, at 311. If this is the dissent’s strange criterion for warrant protection (“obviously owned by and in the custody of”) its preceding paean to the importance of preserving passengers’ privacy rings a little hollow on rehearing. Should it not be enough if the passenger says he owns the briefcase, and the officer has no concrete reason to believe otherwise? Or would the dissent consider that an example of “obvious” ownership? On reflection, it seems not at all obvious precisely what constitutes obviousness — and so even the dissent’s on-the-eheap protection of passengers’ privacy interest in their property turns out to be unclear, and hence unadministrable. But maybe the dissent does not mean to propose an obviously-owned-by-and-in-the-eustody-of test after all, since a few sentences later it endorses, simpliciter, “a rule requiring a warrant or individualized probable cause to search passenger belongings,” post, at 312. For the reasons described in text, that will not work. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_genapel2	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant. LEVENTHAL et al. v. DISTRICT OF COLUMBIA et al. No. 7092. United States Court of Appeals for the District of Columbia. Decided Sept. 26, 1938. Rehearing Denied Nov. 19, 1938. STEPHENS, Associate Justice, dissenting. Michael J. Keane, Jr., and Gerald Oxen-burg, both of Washington, D.C., for appellants. Elwood Seal, Corp. Counsel, and Vernon E. West, Chief Asst. Corp. Counsel, both of Washington, D.C., for appellees. Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices. EDGERTON, Associate Justice. By bill in equity in the District Court, plaintiffs sought to require the Zoning Commission to rezoue plaintiffs’ lot at Michigan Avenue, 12th and Randolph Streets N. E., and to require the Building Inspector to grant corresponding permits. The case was heard on defendants’ motion to dismiss. The motion was sustained, and plaintiffs appeal. The action of zoning authorities, as of other administrative officers, is not to be declared unconstitutional unless the court is convinced that it is “clearly arbitrary and unreasonable, having no substantial relation to the * * * general welfare.” Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016. Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842. Cf. Pacific States Box & Basket Company v. White, 296 U.S. 176, 182, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853. If the question is “fairly debatable,” the zoning stands. Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074. Accordingly the question on this appeal is whether the facts alleged in the plaintiffs’ bill, if taken as true, show beyond debate that the present residential zoning of plaintiffs’ property is arbitrary and unreasonable. Plaintiffs’ property is a corner lot. It is on the east side of 12th Street, N. E., at the point where 12th Street merges with Michigan Avenue, and on the north side of Randolph Street. Plaintiffs’ brief aptly paraphrases their bill as alleging “that Twelfth Street, Northeast, upon which street appellants’ parcel of land abuts, for several miles running north from Rhode Island Avenue, is entirely 1st Commercial on both sides of the street, except for appellants’ property fronting on Twelfth Street.” This conveys the impression that the property on both sides (north and south) of theirs, and the property across the' street to the west, is zoned commercial. But plaintiffs’ Exhibit C, a plat annexed to their bill, shows the facts, which are quite different. It shows that no neighboring property farther north than plaintiffs’, or as far north, is zoned commercial. It shows that the property to the west of plaintiffs’, across 12th Street, is likewise zoned residential; what saves their statement from being categorically untrue is the fact that 12th Street here merges with Michigan Avenue, so that this opposite property is on Michigan instead of 12th. All the property which abuts on plaintiffs’ is zoned residential, like theirs. All the property which faces theirs across any street or streets is zoned residential, except a narrow strip to the southwest, across both 12th and Randolph Streets, and a few feet of the frontage to the south, across Randolph Street. Plaintiffs’ property is occupied by a cleaning establishment, a “nonconforming use” which plaintiffs are privileged, under the law, to maintain. There are heavy traffic, a stop sign, a bus stop, a hack stand, and the end of a street-car line in'front of plaintiffs’ property; noise, fumes and confusion result; and sleep is broken at 5 a. m. The bill alleges that plaintiffs’ land is “wholly unfit” for any residential purpose. This is not a statement of fact; fitness or unfitness for residential use is a matter not merely of degree, but of opinion. The facts in this case prevent plaintiffs’ statement from being even a tenable opinion; for it is to be presumed, from their failure to allege the contrary, that all the residence-zoned property adjoining or facing their land, most of which is subject to identical conditions, can be and is used for residence purposes. As there is no allegation to the contrary we must even assume that the commercial-zoned property across the street from plaintiffs’, at the southeast corner of 12th and Randolph Streets, is used for residence purposes. Even if facts were alleged which would support, or even require, a conclusion that plaintiffs’ property could not be used for residence purposes, it could not be inferred that the present zoning deprives them of the use of their property, since it appears that the property is lawfully devoted to a non-conforming commercial use. Plaintiffs allege that they cannot get enough rent for their property, as now zoned, to pay taxes and other carrying charges. This suggests that their taxes are too high, but not that their zoning is clearly unreasonable and arbitrary. Plaintiffs would make more money if their zoning were changed. But residential zoning is not invalidated by the fact that if the property “were available for business purposes its market value would be greatly enhanced.” Zahn v. Board of Public Works, 274 U.S. 325, 327, 47 S.Ct. 594, 71 L.Ed. 1074. Zoning may inflict serious pecuniary injury upon the plaintiff without being arbitrary. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann.Cas.l917B, 927; Village of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016. “Some must suffer by the establishment of any territorial boundaries. * * * If these limits hurt the present plaintiffs in error, other limits would hurt others.” L’Hote v. New Orleans, 177 U.S. 587, 597, 20 S.Ct. 788, 792, 44 L.Ed. 899. Plaintiffs tried in vain to get even one of the other property-owners in their neighborhood to consent to a hearing on rezoning. Obviously, therefore, the advantage which plaintiffs seek would not extend to their neighbors. It must be presumed that the rezoning which plaintiffs seek would actually inflict injury on the owners and occupants of the other property in the neighborhood; for the bill does not allege that they would not be injured, or that there is need of more business property. That “over-zoning” for commercial uses tends to depreciate, property values is well known. “Facts relied upon to rebut the presumption of constitutionality must be specifically set forth.” Pacific States Box & Basket Company v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 163, 80 L.Ed. 138, 101 A.L.R. 853. An allegation that “practically all of the usual and customary benefits of ownership were appropriated by the aforesaid Zoning Commission” is not a fact specifically set forth. In our opinion, appellants’ bill sets forth no facts sufficient to rebut the presumption. Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842, on which they rely, was quite a different case. The land which the Court there held to be arbitrarily zoned residential was bounded on two sides by unrestricted property; here, all the property adjoining or facing plaintiffs’ lot, except a small amount of frontage across Randolph Street, is in the residential zone. The land in issue in the Nectow Case was bounded on all sides either by unrestricted property or by streets; here, it is bounded on all sides either by residential property or by streets. There, a large automobile assembly plant adjoined the property, and a soap factory and a railroad were close by; here, the obstacles to residence use are less impressive. In Hazen v. Hawley, 66 App.D.C. 266, 86 F.2d 217, this court affirmed a decree which ordered the Zoning Commission to rezone plaintiffs’ property so as to permit the building of an apartment house; .but the trial court had found, among other things, that (IX) “Petitioner’s property is located in the heart of an area extensively occupied by hotels and apartment houses” [page 220]; that (X) it was the only property along the Capital Traction Company’s car lines, from the downtown district to Chevy Chase Circle, so zoned as to prohibit apartment houses; and that (XVII) “There is extreme need for additional housing facilities in the District of Columbia, and * * * a shortage of available apartments.” In Ehrlich v. Village of Wilmette, 361 Ill. 213, 223, 197 N.E. 567, 572, the property was “the only property in the block in which it is located fronting on Fourth Street * * * singled out for classification in the A resident district,” and the terminal yards of a railway were directly across the street. In those cases and some others it has been held that the owner of a residence-zoned island or peninsula in a commercial-zoned sea, if he is seriously injured by the discrimination against him, may be entitled to complain of arbitrary and unreasonable action. In the present case, plaintiffs’ property is not in that category; on the contrary, if plaintiffs had their way their property would become a commercial-zoned island or peninsula in a residence-zoned sea. In Women’s Kansas City St. Andrew Society v. Kansas City, Mo., 8 Cir., 58 F.2d 593, it was held unreasonable and arbitrary to forbid the use of an existing residence, in a residential zone, as a charitable “home” for twelve old ladies. There were apartment hpuses in the neighborhood; and without violating the ordinance the same building, presenting exactly the same appearance, could have been used as a boarding house for the same old ladies. The court held, in effect, that it was immaterial to the public welfare whether the occupants lived on their own funds or the funds of a charitable trust. Village of University Heights v. Cleveland Jewish Orphans’ Home, 6 Cir., 20 F.2d 743, 54 A.L.R. 1008, laid down the same doctrine with respect to the home there involved. A similar question with regard to a home for aged poor was adverted to, but not decided, in Washington ex rel. Seattle Title Trust Company, Trustee v. Roberge, 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, 86 A.L.R. 654. These cases, which appellants cite, do not sustain their position. As the court said in the University Heights Case, “We can see many valid reasons, affecting the public welfare, which would justify the exclusion of factories, business houses, shops, and even apartment houses from strictly residential districts, but which would not apply to the use of structurally proper cottages for an orphanage.” 6 Cir., 20 F.2d 743, 745. “Of course the line of demarcation between property to be used for industrial purposes and residence purposes is necessarily in any case somewhat arbitrary.” American Wood Products Company v. City of Minneapolis, 8 Cir., 35 F.2d 657, 661. “The property on one side of a line cannot, in the very nature of things, be very different from the property on the other side of the line.” In re Dawson, 136 Okl. 113, 116, 277 P. 226, 228. If “arbitrariness” in this sense were enough to upset a zoning regulation, no zoning could stand. Where, as here (1) plaintiffs’ land and neighboring land similarly situated are similarly zoned and (2) plaintiffs’ demand for a different zoning rests substantially on the ground^" that their location is more or less marginal and they would profit by the change, with some regularity relief has been denied. American Wood Products Company v. City of Minneapolis, 8 Cir., 35 F.2d 657; Geneva Investment Company v. City of St. Louis, Mo., 8 Cir., 87 F.2d 83; Feraut v. City of Sacramento, 204 Cal. 687, 269 P. 537. Cf. Kenealy v. Chevy Chase Land Company, 63 App.D.C. 327, 72 F.2d 378. As the facts stated in the bill are not sufficient to show that the accused regulation is invalid it follows, of course, that the bill states no cause of action and was rightly dismissed without a hearing on the merits. Pacific States Box & Basket Company v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853; Feraut v. City of Sacramento, 204 Cal. 687, 269 P. 537. In Bugher v. Gottwals, 60 App.D.C., 340, 54 F.2d 451, this court reversed a decree which dismissed, without a hearing on the merits, a bill to require rezoning; but there the bill alleged, among other things, that appellants’ lots were on K Street, from 85 to 159 feet west of 16th; that while 16th was zoned residential, K was zoned commercial for five or six blocks east and five or six west of 16th, except the four corners at 16th and except appellants’ lots; and that appellants’ property had stood vacant for some time, because of the impossibility of putting it to any use whatever under existing zoning. Similarly in Dorsey v. Gotwals, 61 App.D.C. 41, 42, 57 F.2d 407, 408, this court reversed a decree which dismissed, without a hearing on the merits, a bill against the Zoning Commission, and said that the question whether the Commission’s action has some relation to the general welfare “is a question of fact which ought to receive judicial scrutiny * * * when, as is the case here, it is raised by proper averments in the bill.” The report does not show what those averments-were; but the record shows that the bill alleged, among other things, that the land immediately adjoining plaintiffs’ property on one side, and also in the rear, was zoned commercial; that the adjoining lot was occupied by a filling station which served many cars and trucks until late at night; that the business district was fast moving in plaintiffs’ direction; and that the local Citizens Association, and also the owners of 59 lots in the same or adjoining squares, had joined in plaintiffs’ request for rezoning and a public hearing had been held at which no property owner appeared in opposition. The present bill shows nothing remotely comparable to the bills in the Bugher and Dorsey Cases. And whatever inferences might once have been drawn from language in those cases, it is now clear that a bill to set aside an administrative order cannot withstand a motion to dismiss “if any state of facts reasonably can be conceived that would sustain” the order. . While this appeal was pending, Congress revised the zoning law of the District of Columbia. We think this revision does not affect the present appeal. Affirmed. STEPHENS, Associate Justice. I think sufficient is stated in the bill of complaint to require the filing of an answer by the appellees and a hearing on the merits. For the purpose of testing the sufficiency of the bill of complaint as against a motion to dismiss, there is> a presumption of the existence of any state of facts ■which “reasonably can be conceived” that would sustain the accused administrative action. Pacific States Box & Basket Company v. White, 296 U.S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853. Appellees state in their brief that this is the fact. Note 1, supra. Bartholomew, Urban Land Uses, pp. 71-73; Bassett, Zoning, p. 83. Supra, note 1. Act of June 20, 1938, Ch. 534, 52 Stat. 797. Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_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, Plaintiff-Appellee, v. Harry J. RYBICKI, Defendant-Appellant. No. 18276. United States Court of Appeals Sixth Circuit. Nov. 22, 1968. G. Franklin Miller, Cincinnati, Ohio, court appointed, for appellant. James W. Eardley, Asst. U. S. Atty., Grand Rapids, Mich., for. appellee, Harold D. Beaton, U. S. Atty., Grand. Rapids, Mich., on the brief. Before O’SULLIVAN and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge. O’SULLIVAN, Circuit Judge. Harry J. Rybicki appeals from judgment entered on a jury verdict, convicting him of violating § 7212(a) of Title 26, U.S.C. The information charged that on February 13, 1967, Rybicki, by threats of force, obstructed two officers of the Internal Revenue Service who were then engaged in the performance of their duties, seeking to collect from him income tax owed by him to the United States. His grounds of appeal are that the government’s evidence was not sufficient to sustain the verdict, and that the District Judge erroneously failed to adequately instruct the jury as to the findings essential to a verdict of guilty. We reverse on the second ground. 1) Sufficiency of evidence. From the proofs introduced, the jury could find the following: Rybicki was indebted to the United States in the sum of $128.00 for additional income tax owed by him and his wife. He had discussed the matter with agents of the Internal Revenue Service between December, 1966, and February, 1967, and had promised to pay the delinquency, but failed to do so. On February 13, 1967, two officers of the Internal Revenue Service went to Rybicki’s home in a rural area near Grand Rapids, Michigan, with the intention of collecting the tax debt or, failing to obtain payment, of seizing a 1960 Oldsmobile and a 1966 Ford pickup truck owned by Rybicki, therefrom to satisfy the mentioned indebtedness. We continue by quoting recitals of the government’s brief: “At approximately 8:20 A.M. on February 12, 1967, Jesse and Forell went to the home of appellant and knocked at his door and received no response. The two vehicles in question were parked in the Rybicki driveway. After knocking for several minutes without success, Agent Jesse prepared certain warning tags and warning notices which he gave to Agent Forell to post on the two vehicles in question, and a Notice of Seizure, which he folded in thirds and inserted between the outer door and its jamb. Forell immediately posted the vehicle as having been seized by the Internal Revenue Service in satisfaction of a tax delinquency. “Several minutes elapsed and another attempt was made to obtain recognition at the residence without success. The two officers thereupon determined to remove the two vehicles in question to a storage location. Forell backed a government-owned vehicle, in which he and Jesse had traveled to the Rybicki residence, out of the driveway and into the street, and Jesse got into the truck, found the keys thereto in the ignition, and began backing it out of the driveway into the street. Jesse then looked up and saw the appellant, Harry Rybicki, standing in the doorway of the Rybicki residence. It appeared to him that Rybicki was standing either in his pajamas or his underwear and that he was holding a double-barreled shotgun in his right hand at about hip level. Jesse observed that Rybicki was holding in his left hand a piece of paper which he concluded was the seizure notice that he had inserted between the door and the door jamb. Jesse stopped the truck, turned off the motor and got out and began to approach the house. He identified himself and Forell, stating, ‘We are with the United States Treasury Department.’ Rybicki’s reply was that he did not give a damn who Jesse and Forell were, he wanted them off his property and if they returned, he would give them a shot of hot lead. Frightened and intimidated, Jesse, together with Forell, who had gotten out of the government vehicle and had approached the house behind Jesse and who heard Jesse’s identifying comments and Rybicki’s reply thereto, left the Rybicki premises and went into Grand Rapids, Michigan, a distance of a few miles.” Rybicki and his wife gave a different account of the relevant events. They said that their first knowledge of the activity of the Revenue Agents was when the wife heard the noise of the motor of the truck being moved by the agent. She aroused her sleeping husband and told him that somebody was backing his truck out of the yard. Rybicki describes his consequent conduct as follows: “So I jumped out of bed and I run to the door and I hollered at them, and nobody answered. So I reached around to the gun rack and grabbed my gun and said, T told you to stop.’ “At that time, a fellow jumped out of the truck. So then he says to me, he said he was an Internal Revenue man. And I said, ‘Well, just a minute till I get some clothes on.’ “So I set the shotgun down, I went back into the house, got dressed, and I come back out and there was nobody around. The vehicles still set in the yard, but they were gone with their vehicle.” It was undisputed that the Revenue Agents were in plain clothes and when Rybicki appeared at his door one of the officers said, “We are with the United States Treasury Department.” Appellant asserts that to be guilty of the offense charged it was necessary that he know that the men who were in the act of moving his truck were officers of the Internal Revenue Service and were then acting in their official capacity. He charges that the evidence did not meet the government’s burden of proving such elements of the charged crime. We are of the opinion that, out of the conflicting accounts of the critical events, the jury, sole judges of the credibility of the witnesses could find that the government proved all elements of the crime. In testing the sufficiency of the case made by the government, the evidence is to be viewed in a light most favorable to it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941) ; United States v. Decker, 304 F.2d 702, 705 (6th Cir. 1962). 2) The Court’s instructions. a) Knowledge as an essential to guilt. The District Judge did not tell the jury that to be guilty of the charged offense, Rybicki had to know that the men were officers and were in the performance of their duties. Appellant’s brief asserts: “The court did not even mention that Mr. Rybicki should know that they were officers. The charge was fatally deficient in that it did not require the jury to find that the defendant knew the men were federal agents, knew they were performing official duties, and intended to obstruct officers as such in the performance of their duties. The jury was charged as though the crime were a regulatory offence instead of a true crime requiring mens rea.” The government resists the claim by asserting that knowledge by Rybicki that the Internal Revenue Agents were government officers performing official duties at the time of the alleged offense was not an essential element of the crime. We disagree. To substantiate its argument in this regard, the government relies upon Mc-Nabb v. United States, 123 F.2d 848 (6th Cir. 1941); United States v. Wallace, 368 F.2d 537 (4th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1169, 18 L.Ed.2d 136 (1967); United States v. Montanaro, 362 F.2d 527 (2nd Cir. 1966), cert. denied, 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed. 2d 144 (1966); and United States v. Lombardozzi, 335 F.2d 414, 10 A.L.R.3d 826 (2nd Cir. 1964), cert. denied, 379 U.S. 914, 85 S.Ct. 261, 13 L.Ed.2d 185 (1964). These authorities may be distinguished from the case at bar by the fact that the offenses there involved would have been crimes regardless of the person against whom they were committed. In Montanaro, the defendant was stopped by federal officers while driving his car. In resisting arrest, he struck one of the officers with his car. This would have been a crime whether or not the pedestrian was an officer. In McNabb, a federal officer was killed under circumstances that would have resulted in a murder charge regardless of who was killed. Here, if the car “thief” had not been an officer acting in an official capacity, Rybicki would have had the right to threaten and use reasonable force to prevent the theft of his property. In United States v. Chunn, 347 F.2d 717, 721 (1965), the Fourth Circuit stated, “Concededly, there is a wide variance and lack of unanimity among the decisions as to whether scienter should be alleged and/or proved.” The line of cases holding that scienter is required stems from Pettibone v. United States, 148 U.S. 197, 204-207, 13 S.Ct. 542, 37 L.Ed. 419 (1893). This Court followed and relied upon Pettibone in Sparks v. United States, 90 F.2d 61, 63 (6th Cir. 1937), where a deputy marshal attempted to execute a search warrant for seizure of counterfeit molds alleged to be on defendant’s premises. Defendant brandished an ax and prevented the officer from carrying on the search. On page 63 we said: “On a trial for resisting an officer it must be shown that the person resisted was an officer, and that the accused was aware of that fact. Pettibone v. United States, 148 U.S. 197, 205, 13 S.Ct. 542, 37 L.Ed. 419.” Sparks is analogous to the instant case in that the man searching for the molds would have no right to seize them from Sparks' premises and Sparks would have a right to prevent the seizure from his property unless the “searcher” was privileged by being an officer acting in the performance of his official duties. We are of the opinion that Pettibone v. United States, supra, and Morissette v. United States, 342 U.S. 246, 263, 273, 276, 72 S.Ct. 240, 96 L.Ed. 288 (1952) command a holding by us that an element of the crime charged to Rybicki was knowledge that the Internal Revenue agents were such and were engaged in performing their duty. We so hold, b. Failure to request instructions. Defendant’s trial counsel did not proffer an instruction that the discussed scienter was an element of the crime; neither did he make objection by pointing to its absence when given an opportunity to do so following the Court’s charge. The government accordingly asks us to employ Rule 30 F.R.Crim.P. to foreclose a relevant claim of error. We, moreover, may also employ Rule 52(b) to entertain the question if we are persuaded that substantial rights of Rybicki were affected by the lack of a charge on scienter. Generally it is the duty of a District Judge to tell a jury what facts they must find before they can convict — that is, to instruct the jury as to the elements of the crime charged. “It is well settled that appellant had a right to a correct statement of the law from the court. It is of course the duty of the court to explain the law of the case to the jury.” Thomas v. United States, 151 F.2d 183, 186 (6th Cir. 1945). It is also generally true that such instructions must be given whether requested or not. Thomas, supra, intimates this, but even if this Circuit has not squarely announced such rule we recognize it to be of general acceptance. In United States v. Massiah, 307 F.2d 62 (1962), reversed on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), Judge Hays, in concurring, said: “In a criminal case, the defendant is entitled to have the jury instructed on all the elements that must be proved to establish the crime charged. United States v. Gillilan, 288 F.2d 796 (2d Cir.), cert. denied, Apex Distributing Co. v. United States, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); Kelley v. United States, 107 U.S.App.D.C. 122, 275 F.2d 10 (1960). “In the present case, the appellants raised no objection to the charge as given, see Rule 30, Federal Rules of Criminal Procedure, but the omission to charge an element of the offense is ‘plain error’ see Rule 52(b), requiring reversal even if the point was not raised below. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Levy, 153 F.2d 995, 998-999 (3d Cir. 1946); Williams v. United States, 76 U.S.App.D.C. 299, 131 F.2d 21 (1942). ‘In a criminal case a court should instruct on all essential questions of law involved in the case, whether requested or not.’ Kreiner v. United States, 11 F.2d 722, 731 (2d Cir.), cert. denied, 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1152 (1926); see Morris v. United States, 156 F.2d 525, 527, 169 A.L.R. 305 (9th Cir. 1946). In United States v. Noble, 155 F.2d 315 (1946), the Third Circuit stated the governing considerations: ‘We think it is self evident that a jury cannot perform its duty of determining the guilt or innocence of a defendant accused of a crime unless they know the essential elements of the crime which he is alleged to have committed. We think it equally self evident that the only appropriate source of that knowledge is the trial judge, whose traditional function has always included that of instructing the jury upon the law. It was because of the failure of the trial judge to give this necessary guidance to the jury that we recently reversed the judgment of conviction in United States v. Levy, 3 Cir., 1946, 153 F.2d 995. We deemed the error so fundamental that we took note of it even though the defendant had not requested the instructions.’ 155 F.2d at 316-317.” Against this law we must consider whether the circumstances of this case call for exercise of our authority to reverse even though the missing instruction was not requested. We feel constrained to do so. We read a colloquy which occurred early in the trial as defense counsel’s aborted effort to have scienter treated as an element in the case. Discussing the issues that would appear, the Court said: “THE COURT: In other words, the only basic issue in this case is whether or not the defendant, by threats of force, obstructed and impeded the plaintiffs, the named persons, from performing their duties? “MR. GERSCH [Counsel for defendant] : The Court indicated for purposes of instructions earlier? “THE COURT: Yes. “MR. GERSCH: The question of knowledge here is one that I would— “THE COURT: You will have to prepare your request on that. I don’t know what you want. We will rule on it at the time. “MR. GERSCH: Well, when you asked if the basic question is whether he did impede, knowing them to be officers or not, seems to be— “MR. EARDLEY: Objection. That wasn’t the Court’s question, I think. “THE COURT: That wasn’t the Court’s question. “MR. GERSCH: If that is the sole resolution of the issue, then, no, there is no— “THE COURT: Can you have any requests you may have available by 2:30, Mr. Gersch? “MR. GERSCH: I will not have any requests, Your Honor. I am sure that the Court will instruct in accordance with the law.” We do not know why defense counsel failed to pursue the matter by requesting an instruction on the necessity of knowledge. The District Judge, in his instructions, said: “It is conceded by the defendant that on February 13, 1967, Joseph L. Jesse and Gordon F. Forell were officers of the Internal Revenue Service of the Department of the Treasury of the United States of America. “It is conceded by the defendant that on that date, the two men named were acting in an official capacity while at the Rybicki residence. “It is conceded that in such official capacity, they were seeking payment of unpaid 1963 federal income tax which had been assessed against the defendant and his wife, Shirley A. Rybicki.” These concessions did not include one that Rybicki was aware of all these conceded facts on the morning that the officers started to move his truck. A jury, however, might not have observed such limitation upon the conceded facts. The District Judge’s instruction on the elements of the charged crime was: “In order to establish the offense charged in the information, the government must establish by evidence to your satisfaction and beyond a reasonable doubt: First, that Gordon F. Forell and Joseph L. Jesse were agents of the Internal Revenue Service of the United States who, at the time certain alleged threats were made, were engaged in the performance of official duties; and, second, that the defendant made threats of the use of force against Joseph L. Jesse and Gordon F. Forell, and that such threats of use of force obstructed or impeded them in the performance of their duties.” Absent is the element of Rybicki’s knowledge that Forell and Jesse were government agents engaged in their duties as such. We feel this omission was not merely a technical procedural fault but could have visited substantial prejudice on Rybicki. There was evidence from which the jury could find that, in the critical moments involved, Rybicki was unsure who the men were and what they were doing with his truck. Evidence showed that things had previously been stolen from his truck and from his premises. On one occasion, his automobile was stolen and later recovered by Grand Rapids police. He claimed that on the morning in question he was awakened by his wife’s shouts that his truck was being backed out of the yard; that he went to his door and “hollered” but nobody answered; and that he then grabbed his gun and observed one man jump out of the truck and say that “he was an Internal Revenue man.” He said he told the man, “Well, just a minute till I get some clothes on,” but when he dressed and returned, they were gone. The jury could find that Rybicki may not have connected the officer’s words, “Treasury Department” with his tax deficiency. He had just been awakened from sleep. There was proof that while in the service in Korea he had a brain concussion which left sear tissue on the back of his head and so affected him that up to a couple of years before this event he had been annually hospitalized for from three to four months and was regularly prescribed “a tranquilizer to slow me down a little bit.” The jury could be persuaded by Rybicki’s testimony this-his actions were motivated by a fear that his truck was being stolen but, under the Court’s above quoted instruction, they could nevertheless find him guilty. The law and the special facts of this case persuade us to reverse. We should make clear that we are not announcing a rigid and mechanical rule that failure of a trial judge to instruct on all elements of a crime will call for reversal, notwithstanding that no request therefor was proffered as required by Rule 30, F.R.Crim.P. Reversed and remanded for a new trial. . The officers testified only that one of them answered Rybicki’s inquiry by saying, “We are with the United States Treasury Department.” Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". STEELE v. HARRISON et al. Court of Appeals of District of Columbia. Submitted April 3, 1929. Decided May 6, 1929. Petition for Rehearing Denied May 25, 1929. No. 4746. Walter C. Balderston and Leonard J. Mather, both of Washington, D. C., for appellant. R. B. Dickey, of Washington, D. C., for appellees. Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices. MARTIN, Chief Justice. The appellant as plaintiff in the lower court filed a bill of complaint against the appellees, praying that a certain deed of conveyance theretofore executed by her be set aside upon the ground of fraud and also upon the ground that it was obnoxious to the proviso of section 1155, D. C. Code (then iu force), providing that no married woman shall have power to make any contract as surety or guarantor. The lower court heard the evidence and dismissed appellant’s bill. This appeal is now prosecuted upon a record containing the pleadings and the substance of the evidence heard by the trial court. We have carefully considered both pleadings and evidence, and we are convinced that the controlling facts in the case are in substance as follows: On May 15, 1926, the appellant, Elsie A. Steele, was, and still is, a married woman, the wife of Lewis P. Steele, and was the owner as tenant in common with Blanche A. Davis of certain real estate situate in the District of Columbia, subject to certain trust incumbrances which are not in question in this case. At that time appellant’s husband Lewis P. Steele, and William E. Davis, husband of appellant’s cotenant Blanche A. Davis, were partners engaged in the real estate business in the District of Columbia, and were in need of funds with which to meet their obligations. They accordingly formulated a plan of having their wives place a trust deed upon the aforesaid property wherewith to secure funds for the use of the partnership. Pursuant to this plan appellant and her cotenant, acting under the direction of their husbands, on May 15, 1926, executed and delivered to Francis L. Davis, brother of said William E. Davis, a deed of conveyance in fee simple for the real estate aforesaid, without any consideration whatever- moving to the grantors. On the same day said Francis L. Davis executed a deed of trust upon the property to> appellees Raymond B. Dickey and Sidney B. Harrison, to secure one H. L. Timbelake in the sum of $7,355. On May 25, 1936, however, this trust was released of record, and on the same day a trust deed was executed to the same trustees to secure the firm of Davis & Steele, in the same sum, to wit, $7,355> and this obligation was indorsed by Davis & Steele to Sue K. Harrison. On the same day, to wit, May 25, 1926, Francis L. Davis reconveyed the property to appellant and her eotenant subject to the aforesaid trust in favor of Steele and Davis in the sum of $7,355. The appellant’s bill of complaint attacks the deed of conveyance executed by her and. her cotenant to Francis L. Davis and prays that it he set aside on the ground that appellant was induced to sign the same by the fraudulent representations of certain of the appellees. This charge, we think, is not sustained by the evidence. Appellant also attacks the deed of trust placed by Francis L. Davis upon the property to secure Steele and Davis in the sum of $7,355, upon the ground that the trust deed if sustained would subject her property as security for the indebtedness of Steele and Davis, thus obligating her as an accommodation surety for them in violation of the proviso of section 1155, D. C. Code (since repealed [see 44 Stat. 676]) which provided that no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser. We think the latter contention of appellant should he sustained. The circumstances surrounding the transaction in question give unmistakable proof of the fact that Francis L. Davis, as grantee in the deed of conveyance, was acting merely as the agent and trustee of appellant and her cotenant in order to place a trust upon their property to serve as security for the debts of their husbands. This was evidently done in order to escape the express provisions of the statute prohibiting such suretyship. Equity, however, looks through the form of the transaction to its substance, and in such case as this the.law follows the equitable rule. It results accordingly that the trust given by Francis L. Davis is subject to the same infirmities as if given directly by appellant, and is therefore void. In Waters v. Pearson, 39 App. D. C. 10, 16, Chief Justice Shepard spoke for this court as follows: “1. Section 1155 of the Code (31 Stat. at L. 1374, chap. 854) confers general power upon married women to engage in business, to contract, to sue separately, etc., as fully and freely as if unmarried, but concludes with this proviso: ‘That no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker, or indorser.’ By this proviso married women were prohibited from binding themselves as surety for others. But the limitation would be of little or no benefit if it could be evaded by the mere form of the contract entered into. If the mere form of the contract, making the married woman appear as a principal* instead of a surety, would serve to prevent judicial investigation of the real nature of her obligation, the provision of the statute would become a dead letter. The statute declares a rule of public policy and its object is to be executed by courts of law as well as equity. Any one may defend an action on a contract by proof that it is in violation of a statute. E. Bement & Sons v. National Harrow Co., 186 U. S. 76-88, 22 S. Ct. 747, 46 L. Ed. 1058-1068. See Fisk Rubber Co. v. Muller, 42 App. D. C. 49; Schwartz v. Sacks, 55 App. D. C. 87, 2 F.(2d) 188; Howard v. Quinn, 55 Wash. Law Rep. 527, affirmed Bradbury v. Howard, 58 App. D. C. 383, 31 F.(2d) 222. Tbe decree of the lower court is reversed with costs, and this cause is remanded for such further proceedings as are not inconsistent herewith. Reversed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_appel1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. William Archie MAYFIELD, Jr., Appellee, v. Bill STEED, Acting Commissioner of the Department of Corrections, Appellant. No. 72-1568. United States Court of Appeals, Eighth Circuit. Feb. 6, 1973. Oliver L. Adams, Rogers, Ark., on brief for appellant. John W. Murphy, Fayetteville, Ark., for appellee. Before HEANEY, BRIGHT and ROSS, Circuit Judges. PER CURIAM. This is an appeal from the judgment of the District Court granting a writ of habeas corpus to William Archie May-field, Jr. (Mayfield). We affirm. Mayfield was convicted of second degree murder in Arkansas state court by a jury from which all women were admittedly systematically excluded. His conviction was affirmed by the Arkansas Supreme Court. Judge Eisele, in a soundly reasoned memorandum opinion, held that the systematic exclusion of .women is impermissible under the rationale of Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), and Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Pursuant to the provisions of Rule 8 of the rules of this Court, we affirm the judgment of the trial court on the basis of its memorandum opinion. Mayfield v. Steed, 345 F.Supp. 806 (E.D.Ark.1972) Question: This question concerns the first 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_genapel1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES v. DICKINSON. SAME v. WITHROW. Nos. 5419, 5420. Circuit Court of Appeals, Fourth Circuit. Jan. 4, 1946. "Roger P.'Marqüis, Atty., Department of Justice, of Washington, D. C. (J.. Edward' Williams, Acting Head, Lands Division,' Department of Justice, of Washington, D. C., and Leslie E. Given, Ú. S. Atty., of Charleston, W. Va.,' on the brief), for appellant. Ernest K. James, of Charleston,'W. Va., for appellees. Before S'OPER, Circuit Judge, and COLEMAN and BARKSDALE, District Judges. SOPER, Circuit Judge. These appeals were taken by the United States from judgments against it'in two suits brought by landowners under the Tucker Act, 28 U.S.C.A. § 41 (20), to recover compensation for the taking of their, lands and for the erosion and intermittent flooding thereof caused by raising the water level of the Kanawha River in South Charleston, West Virginia, by the erection and operation of the Winfield Lock and Dam. Dickinson’s land consisted of a tract 3.1 acres in extent which bounded on the low-water mark of the river for a distance of 411 'feet. Dickinson acquired the land on August 16, 1937, and between that date and September 22, 1938, which the court found to be the date of the taking, he made substantial improvements thereon in the form of' grading and filling, construction of sewers, water and gas lines, the installation of a gasoline filling station and the erection of a large residence near the top of the river bank. By reason of raising the level of the river and the operation of . the dam 0.22 . acre of land was permanently submerged and 0.10 acre thereof lying between the elevation of 566 feet and 574 feet above mean sea level will be subject to intermittent flooding. The court found that on September 22, 1938, the 0.22 acre permanently flooded had a fair market value of $400 and the flowage easement to flood intermittently the 0.10 acre a fair market value of $75. The court also found that during the latter raises in the stage of the river, and after the attainment of the present permanent level of 566 feet, considerable erosion of the residue of the plaintiff’s property at the river bank occurred which was caused by the saturation and softening of the soil and the wave action thereon that resulted from the permanent flooding of the 0.22 acre of tire plaintiff’s land. For the damages caused by this erosion the District Judge allowed the property owner the sum of $4,245.63 on the theory that for this sum appropriate protective work along the river bank to prevent the erosion, consisting of a rock toe wall and stone riprapping up to an elevation of 569 feet, could have been installed. Withrow’s property is a tract of land, 'containing a number of city lots, and fronting on the river approximately 180 feet. The District Court found that 0.11 acre thereof was permanently submerged and 0.04 acre will be subject to intermittent flooding as the result of the raising of the level of the river and the operation of the dam. The court found that the land was taken on September 22, 1938, and that then the fair market value of the land permanently submerged was $200 and the fair market value of the flowage easement to flood intermittently the 0.04 acre was $35. The court also found that, during the latter stages in the rise of the river and after the attainment of the permanent pool stage of 566 feet above mean sea level, considerable erosion to the residue of the property at the river bank ■was caused by the saturation and softening of the soil and the wave action thereon which was the direct and proximate result of the taking of the 0.11 acre permanently flooded. For the damages caused by the erosion the court allowed the sum of $1,859.40 on the theory that for this sum of money the owner could have erected a rock toe wall and stone riprapping to an elevation of . 569 feet above sea level which would have protected the property from erosion. The first important contention raised by the United States is that both suits were barred by limitations under the Tucker Act because they were not instituted until the month of April, 1943, the complaint of Dickinson on April 1 and the complaint of Withrow on April 10, more than six years after the rights of action accrued. The decision of this question depends upon the date upon which the taking of the plaintiffs’ properties occurred and for this purpose it is necessary to consider the several steps which took place leading to the construction and completion of the dam and the raising of the river from time to time as the pool was filled. The improvement of the river to support a 9 foot channel by substituting four new locks and dams for those previously in place was authorized by the Acts of July 3, 1930, 46 Stat. 918, 928, and August 30, 1935, 49 Stat. 1028, 1035. The Winfield Lock and Dam was constructed under the authority of these Acts, and on July 1, 1936, notice was given to the holders of War Department permits in the area that the water elevation would be raised, and shrubbery and vegetation along the river banks were cut by the government. By October 21, 1936, construction of the dam had proceeded far enough to raise the elevation in the pool of a previous dam downstream from the plaintiffs’ properties which, however, were not affected thereby. Subsequently the river was raised by the operation of the Winfield Dam at the plaintiffs’ properties by gradual stages from a previous elevation of 554.65 to the present elevation of 566 feet above mean sea level, namely, on May 30, 1937, to 556 feet; on October 20, 1937, to 558 feet; on January 6, 1938, to 563.15 feet; on August 26, 1938 to 565 feet; on September 1, 1938, to 565.5 feet and on September 22, 1938, to 566 feet. The dam was officially inspected and accepted by the federal government on August 20, 1937. The District Judge held that the cause of action in each case accrued on September 22, 1938, when the pool was filled and the river was finally raised to the contemplated new level of 566 feet, an increase of 11.35 feet over the former normal level, whereby the lands of the plaintiffs were permanently submerged as above described. Under this holding the suits of the plaintiffs instituted in April, 1943, were not barred by limitations. The United States, however, contends that the taking occurred and the right of action accrued on October 21, 1936, before the lands of the plaintiffs were actually invaded, but when the construction of the dam had proceeded far enough to raise the level of the pool downstream below the lands of the plaintiffs. Alternatively the government suggests that the taking occurred on May 30, 1937, when the level of the river opposite the plaintiffs’ lands was first raised by the operation of the dam from 554.65 to 566 feet and plaintiffs’ lands were first partially submerged. It will be observed that if the earlier daté is accepted as correct, the pending suits were barred; but if the later date is accepted, the pending suits were brought in due time. In either event it is important to fix the precise date because it is said that the cases at bar were selected as tests to determine the legal principles to be applied in similar süits now pending in the District Court. It is conceded by both parties that although the use of the lands by the United States was continuous, only one cause of action accrued; and this position is sustained by the decisions which hold that when a permanent structure erected by government authority results in the invasion of or damage to land, only one right of action arises and this accrues upon the completion of the structure and the happening of the injury, and in this action, all damages, past, present and prospective are recoverable. Suehr v. Chicago Sanitary District, 242 Ill. 496, 90 N.E. 197; Carpenter v. Lancaster, 212 Pa. 581, 61 A. 1113; King v. Board of Council of City of Danville, 128 Ky. 321, 107 S.W. 1189; 4 Sutherland on Damages, 4 Ed., § 1039; 1 Am.Jur., Actions, § 117. The contention of the United States that the pending suits are barred by limitations rests primarily upon the decisions of the Court of Claims in County Court of Marion County, W. Va., v. United States, 53 Ct. Cl. 120, and Dooner et al. v. United States, 95 Ct. Cl. 392. In the first of these cases it was suggested that it might be said that the statute of limitations begins to run in cases of this kind when the dam is completed and put in operation, or when the first damage is suffered, or at some subsequent time when the taking is to be deemed complete. The case before the court concerned certain county roads which were occasionally invaded by intermittent floods alleged to be caused by the erection of a government dam which was completed and began to fill on November 3, 1903. The suit was not brought until November 5, 1911. The landowner claimed that the taking did not occur until 1911, contending that the statute did not begin to run until the cause of action was complete and the roads had been abandoned. But .the evidence showed that all the roads were subject to intermittent flooding as soon as the pool filled and the court therefore rejected the landowner’s contention and, without stating that the right of action accrued when the dam was finished or when the water first began to submerge the land, held that so far as there was any taking, it was complete when the water had reached pool level. The point was emphasized that the time of accrual of the right of action did not depend on the time when the county decided to abandon the use of the roads. Again, in the second cited case from the Court of Claims, Dooner et al. v. United States, 95 Ct.Cl. 392, 397, 399, it was held that the owner of permanently flooded lands was entitled to interest from the date when the land was completely submerged. We think that this is the rule to be applied in the cases now under consideration. The taking occurred in the course of the exercise by the United States of its right to improve the navigation of the river, but without prior condemnation or purchase of the land which it intended to invade. These circumstances gave rise to an implied contract to pay for the land taken, but the subject matter of the contract and the extent of the land to be taken were not established with certainty until the pool was raised to its permanent level. Until this occurred the whole matter was subject to government change and control and the taking was not complete. It is established that the mere fact that the government has undertaken a flood control project and completed a part thereof without the invasion of the land of abutting owners does not- amount to a taking thereof. United States v. Sponenbarger, 308 U.S. 256, 265, 60 S.Ct. 225, 84 L.Ed. 230; Danforth v. United States, 308 U.S. 271, 286, 60 S.Ct. 231, 84 L.Ed. 240. An intention ultimately to use the land is not sufficient to constitute a taking under these circumstances. When we come to the merits of the case we find no denial of liability on the part of the United States for the value of the land permanently submerged or for the damage, if any, to the land from permanent intermittent floods caused by the operation of the dam. Both invasions, if found to exist, are conceded to be takings for which compensation must be paid by the government under the rules established by the decisions, and the values placed by the District Judge upon the land are not attacked. The decision of the District Judge is attacked principally because he allowed substantial compensation — $4,245.63 in the case of Dickinson and $1,859.40 in the case of Withrow — for the erosion and damage caused by the raising of the pool to the residue of the property not permanently submerged. The United States contends that the losses suffered by the landowners in this respect were not the result of a taking of the property in the constitutional sense, but were merely consequential damages attendant upon a public undertaking for which no recovery can be allowed by the courts. Many cases are cited in which the courts have been called upon to consider damages to land from flooding or erosion caused by the erection of dams, dykes and other structures under governmental authority; and it has been necessary to draw the difficult line between the taking involved in the direct appropriation of private land for public use for which the United States is liable at the suit of the landowner, and the indirect consequential damages flowing from the construction of public structures which are recoverable only by act of Congress. These cases illustrate a variety of circumstances in which heavy damages from flooding or erosion took place and it was held that the United States was not liable for the loss sustained or for the cost of protective measures to prevent it. But these decisions do not touch the specific point upon which the landowners here rely, for in none of them was there a permanent submersion and an acknowledged taking of any part of the land such as has occurred in the cases now before the court. The landowners rest their case in this respect on another line of authority which holds that when part of an owner’s land is completely taken, he is entitled not only to compensation therefor but also to compensation for any damage occasioned to his remaining land. It was on this theory that the court below based its findings in the sums above stated for the cost of protecting the residue of the lands against erosion and flood damage. The court found as to the Dickinson property that between 5,000 and 7,000 cubic yards of the river bank broke off and slipped into the river, approximately thirty trees, ranging in diameter from six inches to one foot six inches, slipped into the river or were destroyed, and a large crack developed iri the earth above the top of the river bank and extended through the foundation of Dickinson’s residence causing substantial damage. This erosion and damage the court found to be due to the saturation and flooding of the soil and wave action as the direct and proximate result of the permanent flooding of the above described 0.22 acre of Dickinson’s land. With respect to Withrow’s land the court made the similar finding that considerable erosion of the river bank abutting the property occurred, a substantial part of the bank broke off and slipped into the river, approximately twenty trees ranging in diameter from six to twenty-four inches slipped into the river or were destroyed, and the unpaved portion of the river road near its dead end in front of Withrow’s residence subsided from four to eight inches. This erosion and damage was due to the same causes as in the case of Dickinson and was the result of the taking of the aforesaid described 0.11 acre of With-row’s land which was permanently flooded. The court also found that in view of the character and value of the properties as of September 28, 1938 when the pool was filled, it would have been sound economy for Dickinson to have spent the sum of $4,245.63 and for Withrow the sum of $1,-859.40 to protect the residue of their respective properties against erosion and damages. There is abundant authority to support this point of view, for example, United States v. Grizzard, 219 U.S. 180, 31 S.Ct. 162, 55 L.Ed. 165, 31 L.R.A.,N.S., 1135, where a part of a farm was taken for the purpose of improving the navigation of a stream by the erection of government locks and dams, and in addition an easement of access from the land to a public road was destroyed. The court held that the government was liable for the damage to the residue, saying (219 U.S. at pages 183, 184, 185, 31 S.Ct. at page 163) : “ * * * Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted. * * * “The constitutional limitation upon the power of eminent domain possessed by the United States is that ‘private property shall not be taken for public use without just compensation.’ The ‘just compensation’ thus guaranteed obviously requires that the recompense to the owner for the loss caused to him by the taking of a part of a parcel, or single tract of land, shall be measured by the loss resulting to him from the appropriation. If, as the court below found, the flooding and taking of a part of the plaintiff’s farm has depreciated the usefulness and value of the remainder, the owner is not justly compensated by paying for only that actually appropriated, and leaving him uncompensated for the depreciation over benefits to that which remains. In recognition of this principle of justice it is required that regard be had to the effect of the appropriation of a part of a single parcel upon the remaining interest of the owner, by taking into account both the benefits which accrue and the depreciation which results to the remainder in its use and value. Thus, in Bauman v. Ross, 167 U.S. 548, 574, 17 S.Ct. 966, 967, 42 L. Ed. 270, 283, it is said: ‘Consequently, when part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened.’ ” See also, United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680; Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328; United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 156 A.L.R. 390; Lewis on Eminent Domain, 3d Ed., §§ 686 and 710. A more recent application of the rule is found in cases in which losses to the property of the Chicago, B. & Q. Railroad Company were occasioned by improvements in the navigation of the Mississippi River. In United States v. Chicago, B. & Q. R. Co., 8 Cir., 82 F.2d 131, 106 A.L. R. 942, certiorari denied 298 U.S. 689, 56 S. Ct. 957, 80 L.Ed. 1408, it wa§ shown that the level of the river was raised by a government dam to such a height as to flood twenty-four acres of the railroad’s property and to cover the right of way and railroad embankment to a point 3.45 feet below the top of the railroad ties. Hence it became necessary to raise and widen the embankment and to raise the tracks so as to create a freeboard of seven feet above the new level of the pool and also to raise culverts and bridges and riprapp the embankment with .rock. This work was necessary in order that the railroad might have as good and safe a track as it had before the improvement and to secure protection against the effect of 'saturation, wave action and distortion by ice. The suit was brought by the United States for condemnation of the floodway easement over the right of way and railroad embankment, and it was held that the railroad was entitled to recover not only the value of the twenty-four acres permanently submerged, which was comparatively small, but also the cost for the changes in the embankment and the railroad line which were needed to protect the railroad and enable it to continue in operation. A verdict in favor of the railroad for $240,000 was sustained. This decision was followed by United States v. Chicago, B. & Q. R. Co., 7 Cir., 90 F.2d 161, in which the railroad was allowed the sum of $400 for 1.6 acre submerged and the additional sum of $347,411.65 as just compensation for the damage to the remainder of the railroad’s property caused by the construction and operation of the dam. We think that this rule is applicable here and that in each case the landowner should be compensated for the loss to the residue of his property occasioned by the building of the dam. The District Judge, as we have seen, based the amount of the recovery in each case upon the reasonable cost, as of September 22, 1938, of protective work adequate to prevent the damage by erosion if installed prior to the raising of the level of the river. He found that the cost of such work in the Dickinson case would have been $4,245.63 and in the Withrow case $1,859.40 and that in each instance it would have been sound economy, in view of the character and nature of the property, to have made the expenditure. The United States argues that there was no showing as to whether or not these sums exceeded the damages from erosion and therefore should not have been allowed because the government is not liable for any sum greater than the market value of the property that might otherwise be destroyed. The testimony, however, shows that Dickinson’s property was wprth $45,000 and Withrow’s property $1*5,000 in September, 1938, and qualified witnesses testified that- in view of the character and value of the property, the expenditure of larger sums than those allowed by the court to prevent erosion and damages would have been economically justified. This evidence can only mean that the erosion unchecked would destroy property values equal to or in excess of the cost of preventive structures. The issue involved is one of fact, and there was evidence to support the finding of the judge. There was abundant evidence given at the hearing to show that erosion had resulted and would result from the operation of the dam; and it was the function of the trial court to determine the amount of the resultant damage. We find no reason to upset its findings in these respects. The United States also contends that Dickinson is not entitled to compensation for the permanent flooding of the entire 0.22 acre submerged, because in the year 1940, with the permission of the Secretary of War, he reclaimed the greater part thereof. This was done at a cost of $16,000 by the installation of protective work consisting of earth and rock fill to prevent further erosion and damage. The fill exceeded the amount of the river bank that had been washed into the river, with the result that all but 0.05 acre of the land originally submerged was reclaimed. It is therefore contended that Dickinson is entitled to be compensated only for the 0.05 acre, and the decision in Kelley’s Creek & N. R. Co. v. United States, 100 Ct.Cl. 396, 412, is cited in support of the contention. We disagree with the holding in that case insofar as it may be thought to lead to the conclusion that Dickinson was not entitled to be paid for the value of the entire acreage completely taken on September 26, 1938. At that time the land was taken under an implied contract on the part of the United States to pay for it. It is clear that the government was not relieved from this obligation by the mere fact that the landowner, with its approval, subsequently recovered a part of the acreage at his own expense. Finally, the government contends that there was no evidence to support the finding that the government took an easement to flood the land intermittently or to support the value placed upon the easement by the court. In neither aspect can the contention be sustained. The easement relates to the land between the permanent elevation of the pool at 566 feet and elevation 574 feet above sea level covering 0.10 acre of Dickinson’s land for which $75 was allowed and 0.04 acre of With-row’s land, for which $35 was allowed. Qualified witnesses estimated the diminution of value that would occur upon the assumption that the acreage would be flooded from time to time and these estimates were in excess of the allowances made by the court. There was in addition evidence to support the finding that the acreage would be subject to intermittent flooding by the operation of the dam. It was shown that the government had acquired by condemnation flowage easements extending to the elevation of 574 feet on non-navigable streams contributory to the Winfield Pool in the vicinity of the Dickinson and With-row properties and that within the eight foot area between the elevations of 566 and 574 feet the stage of the river can be made to rise and fall through the manipulation of the dam. The frequency within which the flooding will occur was not shown, but we think that the acquisition of flowage easements in the vicinity and the construction of the dam with equipment capable of flooding the lands to the elevation of 574 feet indicate an intent to subject the land to intermittent flooding and amount to the taking of easements for which compensation was due. See Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351. The judgments of the District Court will be Affirmed. The intention of the United States to use the land of a private owner as a suitable field over which to fire heavy guns installed for the purpose may constitute a taking; Peabody v. United States, 231 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351; Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809; but it is obvious that in such a situation, the existence of the intention itself deprives the owner of the use of his land and constitutes a taking. Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 20 L.Ed. 257; Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142, 96 A. L.R. 1; United States v. Sponenbarger, 308 U.S. 256, 267, 60 S.Ct. 225, 84 L.Ed. 230; United States v. Willis, 4 Cir., 141 F.2d 314, 316. Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414; Manigault v. Springs, 199 U.S. 473, 26 S.Ct. 127, 50 L.Ed. 274; Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624; Cubbins v. Mississippi River Comm., 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041; Horstmann Co. v. United States, 257 U.S. 138, 42 S.Ct. 58, 66 L.Ed. 171; Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608; United States v. Chicago, M., St. P. & P. R, Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761; Salliotte v. King Bridge Co., 6 Cir., 122 F. 378, 65 L.R.A. 620; Franklin v. United States, 6 Cir., 101 F.2d 459; W. A. Ross Const. Co. v. Yearsley, 8 Cir., 103 F.2d 589;' Cf. Coleman v. United States, C.C. N.D.Ala., S.D., 181 F. 599. Question: What is the nature of the 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_genstand	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America, Appellant, v. EL POMAR INVESTMENT COMPANY, Appellee. No. 7342. United States Court of Appeals Tenth Circuit. April 23, 1964. Phillip Miller, Atty., Dept. of Justice, (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Karl Schmeidler, Attys., Dept. of Justice, Lawrence M. Henry, U. S. Atty., and Merle R. Knous, Asst. U. S. Atty., on the brief), for appellant. Ben S. Wendelken, Colorado Springs, Colo. (Murray, Baker & Wendelken, Colorado Springs, Colo., of counsel, on the brief), for appellee. Before MURRAH, Chief Judge, and PHILLIPS and PICKETT, Circuit Judges. ORIE L. PHILLIPS, Circuit Judge. This is an action to recover on a tax refund claim. It involves the question of whether deficits of predecessor corporations were carried over to successor corporations, which acquired the assets of their respective predecessors through tax-free reorganizations, with the result that earnings and profits of the last successor corporation realized after the last reorganization, but prior to 1951, retained by it until 1951, and in that year distributed to stockholders constituted a return of capital, rather than a dividend, taxable under § 115(a) of the Internal Revenue Code of 1939, 26 U.S.C. § 115(a). El Pomar Investment Company, a Coloi-ado corporation, is the taxpayer involved. From a judgment in favor of Pomar for $2,621.65, with interest, the United States has appealed. The case was tried on a written stipulation and the exhibits attached thereto, filed by the parties, from which the following facts appear: Pomar was a stockholder in the Garden City Company, a Colorado corporation. During the year 1951, it distributed to its stockholders $117,477. Pomar received $67,539 thereof and reported it in its income tax return for 1951 as dividend income and paid the tax thereon. Thereafter, it filed a timely claim for refund of $2,832.13 on the ground that 45.72967 per cent of the amount received by it, or $30,885.36, was a dividend from earnings of Colorado-Garden City and 54.27033 per cent thereof, or $36,653.64, was a return of capital and not taxable. The claim was disallowed and Pomar then brought this action to recover on its claim for refund. On April 2, 1919, Garden City Sugar and Land Company, a corporation, had outstanding First Mortgage and Refunding Bonds of the face value of $2,224,750; Real, Chattel, and Collateral Trust Bonds of the face value of $2,500,000; and 25-Year Income Bonds of the face value of $685,000. It did not have sufficient cash to pay the interest on the First Mortgage and Refunding Bonds, which had become due January 1, 1919, and had neither funds nor credit through which it could obtain funds to pay the installments of interest on the First Mortgage and Refunding Bonds and the Real, Chattel, and Collateral Trust Bonds, respectively, to accrue and become due July 1, 1919, and it was without funds or credit to finance its farming operations for the current year. A bondholders’ committee was created and a plan evolved and reduced to writing for the adjustment of such securities and the establishment of adequate credit with which to provide the necessary working capital for the operations of the current year. Acceptance of the plan was obtained and the bonds were transferred to and deposited with the bondholders’ committee. On October 10, 1919, the bondholders’ committee obtained a decree of foreclosure against the Sugar and Land Company in the District Court of Finney County, Kansas. In January, 1920, the committee caused the Garden City Company, a Delaware corporation, and the first successor corporation to be organized. The committee purchased all the property of the Sugar and Land Company at the foreclosure sale had pursuant to such foreclosure decree and transferred all of such property to Delaware-Garden City in exchange for its bonds, having a face value of $4,250,000, and its entire issue of stock, being 100,000 shares of no par value common stock. The new bonds were made inferior to a working capital loan, which was not to exceed $500,000. During the period January 1, 1914, to January 1, 1920, the Sugar and Land Company had a cash operating deficit of $714,360.46 and an allowed depreciation deficit of $500,024.51, or an aggregate of $1,214,384.97. At the time Delaware-Garden City was organized, it had neither accumulated earnings nor deficits from operations, except such accumulated earnings or deficits as were carried over from the Sugar and Land Company. Delaware-Garden City carried on the same kind of business at the same place and with the same property as had the Sugar and Land Company. On August 15, 1929, $3,980,417.50 of income bonds of Delaware-Garden City, secured by a mortgage on its property, were issued and outstanding. No interest had been paid on such bonds. On January 1, 1930, all of the principal of such bonds and accrued interest thereon would mature and be payable. Delaware-Garden City was not financially able to pay such principal and interest and a readjustment of the capital financial structure of the company was unavoidable. Aside from the amounts due on such bonds for principal and interest, Delaware-Garden City was in good financial condition and had quick assets of over $500,000, consisting largely of cash and sugar in storage. It was necessary to retain such quick assets in order to finance the current operations of Delaware-Garden City and keep it a going concern, but such assets were sufficient to provide it or a reorganized company with adequate working capital. Aside from the bond indebtedness, Delaware-Garden City had no substantial indebtedness, even for current bills. Thereafter, pursuant to a plan of reorganization, the following events took place: On August 15, 1929, a bondholders’ committee was created by the holders of income mortgage bonds of Delaware-Garden City; such bondholders transferred such income-mortgage bonds to the 1929 bondholders’ committee; the 1929 bondholders’ committee obtained a decree of foreclosure of Delaware-Garden City’s mortgage securing its income bonds; on November 6, 1930, it organized Colorado-Garden City; and on November 14, 1930, it acquired all of the property of Delaware-Garden City at a foreclosure sale under such decree of foreclosure and caused the same to be transferred to Colorado-Garden City in exchange for all of its authorized common stock, which the bondholders’ committee caused to be issued to the bondholders of Delaware-Garden City. Colorado-Garden City carried on the same kind of business at the same place and with the same property that had been carried on by Delaware-Garden City.! During the period January 1, 1920, to November 17, 1930, Delaware-Garden City had accumulated a total deficit of $2,931,197.02, which included accrued and unpaid interest on income bonds of $2,-540,668.28.. At the time Colorado-Garden City acquired all of the assets from the bondholders’ committee, it had neither accumulated earnings nor deficits from operations, except such accumulated earnings or deficits as might have been properly carried over from Delaware-Garden City and the Sugar and Land Company. For the fiscal year ending February 29, 1952, Colorado-Garden City had earnings and profits available for distribution in the amount of $56,843.47, without any deduction for cost depletion; and for the same year had undistributed earnings and profits realized during prior years in the amount of $348,222.54, after payment of dividends in previous years, but before taking into account operating deficits of Delaware-Garden City and the Sugar and Land Company. On each reorganization all of the debts owing to creditors of the predecessor corporation, other than bond indebtedness, were assumed and paid in full by the successor corporation. On the first reorganization all of the stock of the successor corporation, Delaware-Garden City, was issued to holders of 25-Year Income Bonds and of Real, Chattel, and Collateral Trust Bonds issued by the predecessor corporation, the Sugar and Land Company, but not qua stockholders in the predecessor. On the second reorganization all of the stock of the successor corporation, Colorado-Garden City, was issued to the several holders of outstanding bonds issued by the predecessor corporation, Delaware-Garden City, each of such bondholders receiving shares of such stock on the basis of his proportionate interest in the whole of such bonds. Thus, on the second reorganization there was a continuity of stock ownership, although certain bondholders of Delaware-Garden City, who may not have been stockholders in it, became stockholders in Colorado-Garden City. While technically the foreclosure on each reorganization wiped out the interests of unsecured creditors and stockholders of the respective predecessor corporation, that result did not actually occur as the reorganization was carried out. On each reorganization the successor corporation assumed and paid in full the indebtedness of the unsecured creditors, although such indebtedness was inferior to the indebtedness secured by the bond mortgage and on the second reorganization all of the holders of stock in the predecessor corporation received stock in the successor corporation, thus preserving a continuity of stock ownership and the adjustment of the bond indebtedness on each reorganization enhanced the value of the stockholders’ equity. The applicable statutory provisions are set forth in Note 5. The second reorganization in the instant case was a reorganization in the sense that term was defined in § 112(i) (1) of the Revenue Act of 1928 and the first reorganization in the instant case came within the provisions of § 202(b) of the Revenue Act of 1918. Under § 115(a) (2) a distribution by a corporation to its shareholders out of its earnings or profits of the taxable year in which the distribution is made is a dividend and taxable as such, even though the corporation at the time of such distribution has an accumulated deficit resulting from losses in prior years. But where a corporation realizes earnings or profits in a particular year and retains them until a subsequent year and such corporation, at the time such earnings or profits were realized, had an accumulated deficit resulting from losses during prior years, such earnings or profits, up to the amounts of the existing accumulated deficit, do not become accumulated earnings or profits. Rather, they are a restoration of capital and when distributed to stockholders are a return of capital, not a dividend. Hence, the specific question for determination is whether the accumulated •deficit of the Sugar and Land Company •carried over to its successor, Delaware-Garden City, and whether such deficit and the additional deficit accumulated by Delaware-Garden City carried over to Colorado-Garden City. We believe that the answer to that question may be found in the adjudicated cases dealing with analogous situations and we now turn to a consideration of those cases. In Commissioner of Internal Revenue v. Sansome, 2 Cir., 60 F.2d 931, c.d. San-some v. Burnet, 287 U.S. 667, 53 S.Ct. 291, 77 L.Ed. 575, a taxpayer bought stock in a New Jersey company on January 1, 1921. On April 1, 1921, the company sold all of its assets to another company, which assumed all of its existing liabilities. The new company issued stock to the shareholders of the old company, proportionately with their respective stockholdings in the old company. The charter of the new company was similar to that of the old company, but provided for expanded business purposes. The old company had a large surplus and undivided profits, earned before January 1, 1921. The new company dissolved in 1923 and began making liquidation payments to its stockholders, which the Commissioner treated as dividends, since the surplus and undivided profits of the old company had not been exhausted by losses that had been suffered by the new company. Sansome contended that he was entitled to treat the liquidation payments as a return of capital to set off against his cost basis of his stock in determining gain or loss. The Board of Tax Appeals held that the companies were separate entities; that the second corporation had distributed none of its earnings and profits; and that the liquidation payments were a return of capital to be set off against Sansome’s cost basis. The Second Circuit reversed and in its opinion in part said: “However, we prefer to dispose of the case as a matter of statutory construction, quite independently of decisions made in analogous, though not parallel, situations. It seems to us that section 202(c) (2) (42 Stat. 230) should be read as a gloss upon séction 201. That section provides for cases of corporate ‘reorganization’ which shall not result in any ‘gain or loss’ to the shareholder participating in them, and it defines them with some particularity. He must wait until he has disposed of the new shares, and use his original cost as the ‘base’ to subtract from what he gets upon the sale. Such a change in the form of the shares is ‘an exchange of property,’ not ‘a sale or other disposition’ of them. Section 201 was passed, in some measure at least, to fix what should come into the computation of ‘gain or loss’; it allowed all payments except those cut out by subdivision c. It appears to us extremely unlikely that what was not ‘recognized’ as a sale or disposition for the purpose of fixing gain or loss, should be ‘recognized’ as changing accumulated profits into capital in a section which so far overlapped the later. * * * Hence we hold that a corporate reorganization which results in no ‘gain or loss’ under section 202(c) (2) (42 Stat. 230) does not toll the company’s life as continued venture under section 201, and that what were ‘earnings or profits’ of the original, or subsidiary, company remain, for purposes of distribution, ‘earnings or profits’ of the successor, or parent, in liquidation. * * ” In Commissioner v. Munter, 331 U.S. 210, 67 S.Ct. 1175, 91 L.Ed. 1441, the facts were as follows: In 1928, stockholders of L. Henderson & Sons, Inc., and certain stockholders of Crandall-McKenzie Company agreed together and with underwriters to effect a merger of the two corporations into a new one. The underwriters agreed to buy for cash 52 per cent of the stock of the new corporation for public sale. The new corporation was formed and it acquired all of the assets of Henderson and McKenzie. The six stockholders of Henderson accepted stock in the new corporation as full payment for surrendering their old company stock. Holders of nearly one-half of the stock in McKenzie did not accept new corporation stock, but were paid $355,000 in cash for their old stock. The other McKenzie shareholders accepted for their old stock the new corporation stock. The result was the distribution of the new corporation stock as follows: To old stockholders of Henderson, 9,524 shares; to old stockholders of McKenzie, 14,607 shares; and to the general public, 25,869 shares. The Commissioner assessed deficiencies against the taxpayers involved, on account of dividends paid them on stock in the new corporation. The new corporation had not realized, after 1928, earnings or profits sufficient to pay such dividends and they were not taxable as such unless the accumulated earnings and profits of the two old corporations carried over to the new corporation. The court held there was a tax-free merger of the two old corporations into the new corporation and in its opinion said: “A basic principle of the income tax laws has long been that corporate earnings and profits should be taxed when they are distributed to the stockholders who own the distributing corporation. See Int.Rev.Code §§ 22, 115(a), (b). The controlling revenue acts in question, however, exempt from taxation distributions of stock and money distributions, at least in part, made pursuant to a reorganization such as transpired here in 1928. See Revenue Act of [May 29] 1928, § 112(b), (c), (i) (1) (A); § 115(c) (h), 45 Stat. 791, 816-818, 822, 823, 26 U.S.C.A.Int.Rev.Acts, pages 377, 378, 379, 385. Thus unless those earnings and profits accumulated by the predecessor corporations and distributed in this reorganization are deemed to have been acquired by the successor corporation and taxable upon distribution by it, they would escape the taxation which Congress intended. * * ” The court further said that in the San-some case “it was held that implicit in the tax exemption of reorganization distributions was the understanding that the earnings and profits so exempt were acquired by the new corporation and were taxable * * * when subsequently distributed” ; and that Congress had repeatedly expressed its approval of the San-some rule as a correct interpretation of the purpose of the tax laws governing reorganizations. It further said: “The congressional purpose to tax all stockholders who receive distributions of corporate earnings and profits cannot be frustrated by any reorganization which leaves earnings and profits undistributed in whole or in part” and held that the participation of new investors in the successor corporation did not prevent the operation of the Sansome rule. In Commissioner v. Phipps, 336 U.S. 410, 69 S.Ct. 616, 93 L.Ed. 717, the facts were as follows: In 1936, the Nevada-California Electric Co3rporation liquidated five of its wholly-owned subsidiary corporations by transferring to itself all of their assets and assuming all of their liabilities and by redeeming and canceling all of their outstanding stock. It was a tax-free liquidation and no gain or loss was recognized for income tax purposes under § 112(b) (6) of the Revenue Act of 1936. On the date of liquidation one of the subsidiaries had accumulated earnings and profits of $90,362.77, and the other four subsidiaries had deficits which aggregated $3,147,803.62. On December 31, 1936, the parent had earnings and profits accumulated after February 28, 1913, of $2,129,957,81, which amount did not reflect earnings or deficits of the subsidiaries. In 1937, the parent had earnings and profits of $390,387.02. Phipps was the owner of 2,640 shares of preferred stock of the parent. During 1937, the parent made a pro rata cash distribution to its preferred stockholders of $802,284, of which Phipps received $18,480. The Commissioner determined that the distribution was a dividend under § 115 of the Revenue Act of 1936 and constituted ordinary income in its entirety. Of the 1937 distribution, approximately 49 per cent, or $390,387.02, was attributable to and paid out of earnings and profits of the tax year 1937. When the ease reached the Tax Court for review, Phipps conceded the amount paid out of current earnings and profits was taxable as a dividend. The Tax Court held that the balance of the distribution to her was not a taxable dividend distributed out of earnings or profits, on the theory that all of the parent’s accumulated earnings and profits, plus the accumulated earnings and profits of the subsidiary that had a surplus were erased and wiped out by the aggregate deficits of the other four subsidiaries. On appeal, the Court of Appeals (Tenth Circuit) affirmed. 167 F.2d 117. The Supreme Court granted certiorari and reversed. In its opinion the Supreme Court said: “The rationale of the Sansome decision as a ‘continued venture’ doctrine has been often repeated in the cases, and in some of them the fact that the successor cosrporation has differed from the predecessor merely in identity or form has lent it plausibility. Other cases, however, demonstrate that the ‘continued venture’ analysis does not accurately indicate the basis of the decisions. The rule that earnings and profits of a corporation do not lose their character as such by virtue of a tax-free reorganization or liquidation has been applied where more than one corporation has been absorbed or liquidated, where there has been a ‘split-off’ reorganization, and where the reorganization has resulted in substantial changes in the proprietary interests.” After reviewing Commissioner v. Munter, supra, the court further said: “* * * We conclude from the cases that the Sansome rule is grounded not on a theory of continuity of the corporate enterprise but on the necessity to prevent escape of earnings and profits from taxation.” In distinguishing the case of Harter v. Helvering, 2 Cir., 79 F.2d 12, the court said: “ * * * In that case the situation was as follows: A Corporation and B Corporation, each of which had accumulated earnings and profits, merged to form C Corporation. By the operation of the Sansome rule, the earnings and profits retained their character as such in the hands of C. Some time later, D Corporation acquired all the stock of C, and thereafter liquidated it in a transaction in which no gain or loss was recognized. At the time of the liquidation of C Corporation, D Corporation, the parent, had a deficit in earnings and profits. The court held, in determining the amount of earnings and profits available to D Corporation after the liquidation for distribution as dividends, that its deficit should be deducted from the accumulated earnings and profits acquired from its subsidiary. It is vigorously contended that the logic of the Harter case compels the allowance of a deduction of the deficits of the subsidiaries from the accumulated earnings and profits of the parent. We believe this view to be the product of inadequate analysis. The difference between the Harter situation and the problem before us may perhaps be clarified by comparing them taxwise if neither liquidation had occurred. Briefly stated, in the case of a distribution to a corporation with a deficit from either current or prior losses, the corporation receiving the distribution has no taxable income or earnings or profits available for current distribution until current income exceeds current losses, and no accumulated earnings or profits until its actual deficit from prior losses is erased. See 1 Mertens, Law of Federal Income Taxation (1942) § 9.30, and eases cited therein n. 44 et seq. In the instant situation, however, the parent did have accumulated earnings and profits available for distribution as dividends, absent the liquidation. * * * -k * * * * “ * * * Respondent’s contention that the logic of the Sansome rule requires subtracting the deficit of the subsidiary from the earnings and profits of the parent as a corollary of carrying over the earnings and profits of the subsidiary has a superficial plausibility; but the plausibility disappears when it is noted that the taxpayer would thus obtain an advantage taxwise that would not be available absent the liquidation since there is no way to ‘declare’ a deficit, and thus no method of loss realization open to the parent parallel to a declaration of dividends as a mode of realizing the profits of a subsidiary. * ***** “Congress has expressed its purpose to tax all stockholders who receive distributions of earnings and profits. In order to facilitate simplification of corporate financial structures, it has further provided that certain intercorporate transactions shall be free of immediate tax consequences to the corporations. There has been judicially superimposed by the Sansome rule, with the subsequent explicit ratification of Congress, the doctrine that tax-free reorganizations shall not disturb the status of earnings and profits otherwise available for distribution. Nevada-California (the parent) at the time of the 1937 distribution to respondent had such earnings and profits. Since we believe that to allow deduction from these earnings of the deficits of its subsidiaries would be in effect to recognize losses the tax effects of which Congress has explicitly provided should be deferred, the judgment of the Court of Appeals is reversed.” This brings us to a consideration of United States v. Snider, 1 Cir., 224 F.2d 165. In that case there was a tax-free reorganization of a Massachusetts real estate trust, which owned and operated two Boston hotels, the Hotel Braemore and Hotel Kenmore, into two corporations, the Hotel Braemore Corp. and the Hotel Kenmore Corp. The case involved the taxability of a dividend declared by the Hotel Kenmore Corp. In the opinion the court said: “The plaintiff, Abraham Snider, owned 25 shares of the 100 shares outstanding of the Massachusetts real estate trust which had been organized in 1922. In 1947 the stockholders of the trust agreed that it would be preferable that the hotel properties be owned and operated by two corporations rather than a real estate trust. At this time the trust had a deficit of about $327,000. The Hotel Braemore Corp. was organized on May 29, 1947. The real estate trust transferred the Hotel Braemore property to this Hotel Braemore Corp. in exchange for all the outstanding stock of the latter corporation except for four shares which had previously been issued to the trust for a nominal sum. Also on May 29, 1947, the Hotel Kenmore Corp. was organized and this corporation issued all its outstanding stock to the four stockholders of the real estate trust in exchange for their trust stock except for four shares which had been issued to these four stockholders for a nominal sum. The Hotel Kenmore Corp. then liquidated the real estate trust and transferred all its assets to itself. Thus the Hotel Kenmore Corp. acquired ownership of the Hotel Kenmore and through its ownership of the stock of the Hotel Braemore Corp., the Hotel Braemore. * * * profits were earned by the Hotel Kenmore Corp. in the fiscal years ending March 31, 1948, 1949, 1950 and 1951 of about $140,000. On December 8, 1950 a cash dividend of $36,000 was paid to the stockholders of the Hotel Kenmore Corp., the plaintiff, Abraham Snider, receiving $9,000. The Hotel Kenmore Corp. had available for distribution in 1950 as current earnings and profits a little over $20,000 and there is no question that approximately $5,100 of the $9,000 received by the plaintiff was clearly dividend income attributable to current earnings and profits and taxable to the plaintiffs. “The issue in this case is whether any portion of this $36,000 distribution to stockholders of the Hotel Kenmore Corp. may be offset by the 1947 deficit of the Massachusetts real estate trust (which deficit is greater than the earnings and profits accumulated by the Hotel Kenmore Corp. since 1947) despite the fact that the real estate trust was terminated in 1947 following the tax-free reorganization * * .” The First Circuit, in holding that Snider was distinguishable from and not ruled by Phipps, in its opinion said: “ * * In the instant case the transferee, Hotel Kenmore Corp., had no accumulated earnings and profits at the time of the reorganization while in the Phipps case the parent corporation did possess accumulated earnings and profits at the date of the tax-free reorganization. Any distributions made by the parent corporation in the Phipps case would have undoubtedly been dividends and therefore taxable to the recipient if the reorganization had not taken place. The result in the Phipps ease was necessary in order to prevent corporations which had earnings and profits from distributing these earnings and profits so as to avoid taxation merely by acquiring the assets of a business possessing a deficit. In the instant case, however, where there were no accumulated earnings and profits at the date of the reorganization of the ownership of the Hotel Braemore and Hotel Kenmore, the taxpayer could not have obtained a tax advantage through a reorganization. In other words, if the taxpayer’s business had continued in its trust form and there had been no reorganization, the $3,909.01 distribution clearly would not have qualified as a dividend under the 1939 Internal Revenue Code and therefore would not have been taxable to the plaintiffs. “There is language in the Phipps opinion which tends to support the plaintiff’s contention. At page 420 of 336 U.S., at page 621 of 69 S.Ct., [93 L.Ed. 717] it is said ‘ * * * the effect of the Sansome rule is simply this; a distribution of assets that would have been taxable as dividends absent the reorganization or liquidation does not lose that character by virtue of a tax-free transaction.’ At page 421 of 336 U.S., at page 622 of 69 S.Ct., [93 L.Ed. 717] : 'There has been judicially superimposed by the Sansome rule, with the subsequent explicit ratification of Congress, the doctrine that tax-free reorganizations shall not disturb the status of earnings and profits otherwise available for distribution.’ “Thus, the Supreme Court seems to emphasize the possession by one of the business entities involved in the tax-free reorganization of accumulated earnings and profits at the time of the reorganization. The non-existence of such earnings and profits in the instant case clearly distinguishes it from the Phipps case. * * ” The First Circuit held that the deficit of the real estate trust could be carried over to offset earnings and profits realized after 1947 by the Hotel Kenmore Corporation, retained by it to a year subsequent to their realization, and then distributed to its stockholders. But commentators and text writers have placed a broader construction on the opinion in Phipps than did the First Circuit in Snider. Wales, in his commentary on the subject of “Tax Advantages of an Acquired Corporation,” Eighth Annual N.Y.U. Institute on Federal Taxation, pp. 920-924 (1950) said: “Though as is hereafter pointed out, the main thrust of the decision [the Phipps case] is prevention of tax avoidance * * the Court apparently lays down a flat rule that deficits of a predecessor cannot be taken over by a successor. Apparently it makes no difference what kind of reorganization occurs — presumably the result would not have been different if the subsidiary had merged into the parent by tax-free statutory merger. And, of course, a taxable reorganization would not carry the deficit in earnings and profits over to a successor. In short, a deficit cannot be acquired by any corporation other than the one where it originated; if a corporation dies, its deficit ceases to exist. * * * if * * “The result of all this seems to be a flat and somewhat arbitrary rule that deficits do not survive the extinction of the corporation in which they arose. The rule apparently has no exceptions; it is comparable to certain statutory rules designed to prevent avoidance, like, say, Section 24(b) or (e) [of the 1939 Code].” And in Mertens Law of Federal Income Taxation, 1962, Rev., Vol. 1, § 9.52, p. 102, the author states that under Phipps: “ * * * if the acquiring corporation was the one with the deficit, that deficit would offset the earnings and profits of the transferor or distributor. But if the transferor or distributor had the deficit, that deficit would not wipe out earnings and profits of the acquiring corporation.” We think the opinion in Phipps, in keeping with well-settled rules for construing judicial opinions, should be read in the light of the facts on which it is based and the ends it sought to attain. In Phipps, at the time the subsidiaries were liquidated and merged into the parent, in the year 1936, the latter had earnings and profits accumulated after February 28, 1913, of $2,129,957.81, and four of the subsidiaries had deficits aggregating $3,147,803.62. In 1937, the parent made a distribution to its stockholders of $802,284, of which $390,387.02 was current earnings, and the balance earnings and profits accumulated prior to the merger. It is clear that all of the 1937 distribution would have been taxable as dividends, had there been no liquidation and merger into the parent of the subsidiaries. Hence, in Phipps, to have permitted the deficits to be carried over to the parent would have resulted in relieving from taxation as dividends distributions which, but for the liquidation and merger, would have been taxable as dividends and would have opened the door to the use of tax-free reorganizations to avoid taxes. We think the reasoning in the Phipps case would also apply to earnings and profits realized by the successor corporation subsequent to the reorganization, retained to a year subsequent to their realization, and then distributed to stockholders, if they would have been taxable as accumulated earnings and profits, had there been no merger or reorganization. That, because the rule in Sansome and Phipps is grounded, we think, on the necessity of preventing earnings and profits from escaping taxation by the utilization of a tax-free reorganization. The utilization of a tax-free reorganization should not be permitted to enable stockholders of the successor corporation to escape taxes on earnings and profits distributed to them if they would have been taxable as such, absent such reorganization. We think preventing tax avoidance by means of tax-free reorganizations was the touchstone of Sansome and Phipps. In the instant case, however, if instead of carrying out the tax-free reorganization in 1920, the Sugar and Land Company had adjusted its bond debt by issuing new bonds and new stock having preference rights over its outstanding stock, and had it again in 1930, instead of carrying' out a tax-free reorganization, again adjusted its bond indebtedness by issuing new stock, and had all of the deficits accumulated by it and by Delaware Garden City up to 1930 been accumulated by it alone, as would have been the case had the reorganizations not occurred, all of such deficits would clearly have been available for an offset against earnings and profits realized by it between the fiscal years 1930 and 1951 and retained by it and not distributed until fiscal 1952, and such distributions not to ■exceed the amount of such defiicits would have been a return of capital and not a taxable dividend. It follows that the reorganizations in the instant case were not carried out in order to avoid taxes on earnings and profits accumulated by the successor corporation at the time of the respective reorganizations or later. The basis for the rule laid down in Sansome and Phipps being absent in the instant case, we think the rule should not apply. To hold otherwise would tend to defeat the essential purpose of Congress in enacting the provisions for tax-free reorganizations. It should be noted that the test we have applied is the one used by the Supreme Court in Phipps in distinguishing the Harter case. United States v. Kavanagh, 8 Cir., 308 F.2d 824, in our opinion, is distinguishable from the instant case. Kavanagh was a reorganization of an insolvent corporation and two of its insolvent subsidiaries under § 77B of the Bankruptcy Act. The reorganizations in the instant case were tax-free and were carried out by bondholders’ committees, acting without any judicial supervision or control whatsoever. Plere, on each reorganization very valuable properties of the predecessor passed to the successor. In Kavanagh the only assets of any significant value which passed to the reorganized company were the patent rights to a knife sharpening device and the stock of such company was issued only to creditors of the debtor and to new stockholders who paid cash for the stock and the equity of the stockholders of the debtor corporation and its subsidiaries was entirely wiped out. Here, on the second reorganization all of the stockholders of the predecessor corporation became stockholders of the successor corporation, resulting in a continuity of stock ownership. In Kavanagh, all of the claims, both secured and unsecured, were adjusted. Here, only secured indebtedness of the bondholders was adjusted. Such adjustments increased the stockholders’ equity. The indebtedness of all the other creditors, unsecured and inferior in rank to the bond indebtedness, was paid in full. The second reorganization differed from Kavanagh in another important particular, in that except for its inability to meet the principal and accrued interest due on its outstanding bonds, Delaware-Garden City was in good financial condition, its assets were very substantial, and it had available unencumbered cash and 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. WARE et al. v. R. E. CRUMMER & CO. et al. R. E. CRUMMER & CO. v. BARNETT BANK OF AVON PARK et al. No. 10195. Circuit Court of Appeals, Fifth Circuit. May 5, 1942. Wallace E. Davis, of Orlando, Fla., for appellants E. H. Ware et al., individually and as Commissioners of City of Avon Park, Florida, debtor. Joseph’ P. Lea, Jr., and R. J. Pleus, both of Orlando, Fla., for R,' E. Crummer & Co.- et al., appellees. F. P. Fleming, of Jacksonville, Fla., for Barnett Bank of Avon Park and M. V. Pilcher, appellees. Merton S. Horrell, of Orlando, Fla., for City of Avon Park, Fla. Before FOSTER, HUTCHESON, and McCORD, Circuit Judges. HUTCHESON, Circuit Judge. The order appealed from was entered in the composition proceedings the City of Avon Park had filed on August IS, 1938. By it appellants were, on December 1, 1941, summarily ordered to replace in the interest and sinking fund of the city, the sum of $65,715.20, which had been collected by a tax for the establishment of the sinking fund for the payment of principal and interest on the City of Avon Park, Florida, refunding bonds, issue of 1937. This order was issued under these circumstances. After the issuance on December 31, 1940, of the mandate of the Supreme Court, the district judge, on March 24, 1941, ordered the City of Avon Park, through its mayor, the commissioners, and the clerk, and all other custodians of official city records, involving moneys received or paid out, and R. E. Crummer & Company, fiscal agent of the city to appear before -the court for the purpose of giving the court their respective views as to the further course the proceeding herein should take, and to submit verified statements showing the condition of debt service funds of the city. It was further ordered “that jurisdiction of the case be retained for the purpose of making such orders as may appear appropriate after the facts have been made available.” Thereafter testimony was taken as to the status of the composition proceedings, as to whether another feasible plan could be submitted, and as to the withdrawal from the sinking fund, and use by the city council, for other purposes, of sums accumulated for the refunding bonds since the filing of the petition. The evidence showing that no feasible plan of composition could be proposed and carried out, and it showing too that the refunding plan having failed, the city council had withdrawn from the sinking fund, the moneys raised to service the refunding bonds under the plan, and had expended them in part for enlarging the facilities of the airport and in part for general municipal purposes, the district judge inquired what there was to be done. Whereupon Mr. Davis, representing the city, stated that the only thing the court could do, would be either to obtain an amended or modified plan of composition or dismiss the proceedings. “If there is not a plan offered by the city then the court can do nothing but dismiss the proceedings.” Mr. Pleus representing Crum-mer & Company then said, “The question before the court is whether or not this court is going to protect its jurisdiction in bankruptcy to the very limit it can go toward rehabilitating the fund which has been dissipated while this court had jurisdiction of the fund, and it is our opinion that the court in protecting its bankruptcy jurisdiction and powers, should require whoever took the funds to restore them.” Thereafter, on August 4, 1941, the district judge issued a show cause order returnable September '15, 1941, to appellants, the present, city commissioners, the prior city commissioners, the contractor, for the airport and his surety, the Barnett Bank and the City of Avon Park. Appearing to this order appellants and the city answered that upon the coming down of the mandate of the Supreme Court, the court had no further duty in the premises except. to dismiss the cause, and that unable to devise any plan to substitute for the one which was rejected, the commissioners and the city, in the exercise of its and their governmental powers, had deemed it right and' proper, the plan having failed, to expend the sums, which had been collected solely for the refunding bonds if the plan should be approved, and they did expend them in the interest of the city and its people. They further answered that the plan did not require or contemplate that they should be deposited in or with the court, and no order was at any time entered by the court with respect to them until after the plan had' failed and that the plan, not having gone beyond the interlocutory stage, they were never in the custody of the court but always in the custody of the city in its governmental capacity and in the management of its fiscal affairs. There was a further answer that all of the moneys in question had been expended either on the improvement of the airport or for the necessary operating expenses of the city, that the commissioners have never had and neither they nor the city have now, any of said moneys. The Barnett Bank answered, denying that the funds were in custodia legis, denying that it at any time conspired with the city or its officials, and alleging that it had done nothing with the funds on deposit with it except to pay them over to the city on the check of its proper officers. The hearing concluded, the district judge, on December 1, 1941, entered the order appealed from. This order exonerated the bank from the charges of conspiracy and misapplication of funds, and discharged it from the rule, ordered the appellants to pay the $65,715.20, discharged all of the others cited except the prior city commissioner as to whom decision was. postponed, ando the.,City of Avon Park, as to whom no order was made. Here appellants, urging that the moneys in question were not in custodia legis but were in the control of the city and its officers and that the plan for the issuing of the refunding bonds having failed, they were lawfully expended under the authority of section 1, Chapter 15907, Acts of 1933, insist that the judgment against them should be reversed. Crummer & Company, on its part, urging that the diverted funds were in custodia legis, that the invoked statute is without application, and that the Barnett Bank, in permitting appellants to withdraw the funds from the sinking fund deposit, were liable as for conversion of them, insists that the judgment, as to appellants, should be affirmed and that on its cross appeal the judgment as to the Barnett Bank should be reversed. We do not think so. In Leco Properties v. Crummer, 128 F.2d 110, this day decided, we have pointed out the nature and extent of, and the limitations upon, the jurisdiction of the court of bankruptcy in a municipal composition proceeding. Here, unlike there, the city not only is not consenting, after the failure of the plan, to the exercise of jurisdiction over its funds, but is resisting and denying that jurisdiction. Here, unlike there, instead of the order of the court distributing, with the consent of the city, moneys gathered into the debt service funds, since the filing of the petition and still there, the order of the court seeks to call the city and its duly elected officers to account as to, and to control the exercise of, the fiscal affairs and governmental functions of the city. In the Bekins case, United States v. Bekins, 304 U.S. 27, 50, 58 S.Ct. 811, 815, 82 L.Ed. 1137, the Supreme Court construed Section 403, under which this petition was filed, as not operating to restrict the city’s control over its fiscal affairs, but as leaving it “free to manage [its] own affairs.” The show cause order directed the city to show cause why it should not sell part of its municipal property and place the proceeds in the custody of the court, and, while no summary order has been entered on this portion of the show cause order, the summary order appealed from, held the city officers personally accountable for the city’s moneys spent on the city’s behalf, and thus undertook drastically to control and direct the actions of the city and its officers in regard to its fiscal affairs. We think that this will not at all do. In the first place there is much to be said for appellants’ contention that the use they made of the funds was justified under the Florida statute they invoke. Without, however, undertaking to determine that, we think it plain that the bankruptcy court was without jurisdiction to enter the order complained of. The funds in question had not been deposited in, or otherwise brought into the actual custody of, the court. They had been collected under a tax levy for the sole purpose of establishing a sinking fund for the payment of principal and interest on the refunding bonds provided for in the plan, and if the plan had been carried through, these funds and the refunding bonds would, under the statute, have been deposited with the court or such disbursing agent as the court might appoint or otherwise made available to the creditors, and the city would have received a discharge from the debts which the refunding bonds were issued to take up. The plan failing, these funds, collected and deposited in a special fund for taking care of the refunding bonds under the plan and for no other purpose, were no longer subject to the proposal of the plan but were freed therefrom, and were, thereafter, subject exclusively to the city’s control under applicable Florida law. Whatever accountability therefore, the appellants may be under to the city for their use of the funds, as its officers on its behalf, that accountability was not to the court of bankruptcy or to be settled in a summary proceeding therein. It follows therefore that the order is affirmed as to the appeal of R. E. Crummer and Co., and reversed on the appeal of appellants, Ware and others, with directions to discharge the appellants and the city from the rule. Affirmed in part and reversed in part. Chap. 10, Title 11 U.S.C.A. § 40Í et seq. The city’s composition was a refunding plan worked out by it and its fiscal agent, R. E. Crummer & Comp*ny. The district court entered an interlocutory .decree confirming the plan. This court, American United Mutual Life Ins. Co. v. City of Avon Park, 108 F.2d 1010, affirmed. The Supreme Court, 311 U. S. 138, 61 S.Ct. 157, 85 L.Ed. 91, 336 A.L.R. 860, finding .the plan discriminatory in favor of Crummer & Company, and that the confirmation of it mast be set aside, reversed the order and remanded the cause to the district court. This tax was collected under City Ordinance No. 228, enacted October 15, 1940, for the levying of a tax, “for the operation and conduct of the several departments and the payment of the operating expenses, and for the payment of tbe debt service of the city and for other purposes.” The tax for debt service was levied “for the establishment of a sinking fund for the payment of principal and interest on tbe City of Avon Park, Florida, refunding bonds, issue of 1937, in accordance with the resolution of December 14, 1937, authorizing the issuance of said refunding bonds which said taxes, when collected shall be deposited in a special fund and distributed for the purpose above mentioned and for no other purpose.” Showing: (1) The amount of moneys in each separate debt service as of the date of the filing of the petition; (2) a statement of all collections on account thereof received subsequent thereto; (3) a statement of all disbursements made from the debt service funds; (4) a statement of cash balances therein. The order recited that it appeared from the testimony that there had .been a wrongful diversion of debt service fund monies; that of such diversion, a part of it was expended upon an airport owned and established by the city in its proprietary capacity; that the monies involved and diverted were assets and resources of the bankrupt municipality which had come within the jurisdiction of the court and which were in custodia legis and that the court has power and authority to require the replacement of the funds. It was therefore ordered, that appellants, the bank, appellee under the appeal of Crurn-mer & Company, and the others named above, show cause why they should not return- to the sinking fund the monies they were responsible for diverting, that the city show cause why it should not sell the airport and put the proceeds of the sale in the sinking fund, and that the city officials show cause why they should not be punished for contempt. And it was further provided: “11. That all injunctive orders heretofore entered in any manner enjoining or restraining suits or actions against the petitioner on account of securities affected by the Plan, or to enforce any such securities or judgments obtained thereon, be and the same are .hereby dissolved, and shall be of no further force or effect; nor shall the continued pendency of these proceedings in any manner preclude the filing or prosecution of any such suits, actions or enforcement proceedings : Provided, however, that jurisdiction is hereby specifically retained over all present monies in the debt service fund accounts of the City of Avon Park, and any monies which may be placed therein as a result of compliance with future orders of the court in this ease, and any debt service tax collections realized before the end of the present fiscal year; and the court will, át the proper time and after notice to creditors, enter its order providing for an equitable disposition of such funds; and s'aid funds now on hand, or to be so replaced or realized, as aforesaid, shall1 in no manner be the subject of any suit dr action to enforce any securities affected by the Plan of ¿Composition herein, or judgments obtained thereon. “12. That this 'cause is hereby continued as a pending proceeding, and this court specifically retains jurisdiction for the purpose of entering any and all orders that may appear to be necessary hereafter.” “Section 1. All funds heretofore or hereafter raised or created by any county or taxing district for the purpose of applying toward the payment of interest or principal of refunding bonds of such county or taxing district, when such refunding bonds are not issued and such funds not otherwise lawfully disposed of shall revert back to the county or special taxing district to be used by the governing body or board of such county or taxing district for such general and lawful purposes of the county or taxing district raising such funds as in the judgment and discretion of such governing body or board shall seem to the best interest of the county or taxing district.” 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_circuit	J	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. SHIGERU FUJII v. UNITED STATES. No. 2973. Circuit Court of Appeals, Tenth Circuit. March 12, 1945. Writ of Certiorari Denied May 28, 1945. See 65 S.Ct. 1406. Samuel D. Menin, of Denver, Colo. (Clyde M. Watts, of Cheyenne, Wyo., on the brief), for appellant. ■Carl L. Sackett, U. S. Atty., of Cheyenne, Wyo. (John C. Pickett, Asst. U. S. Atty., of Cheyenne, Wyo., on the brief), for appellee. Before BRATTON, HUXMAN, and MURRAII, Circuit Judges. HUXMAN, Circuit Judge. Shigeru Fujii, the appellant herein, was indicted, tried, and convicted tinder 50 U.S. C.A. Appendix § 311, for wilfully refusing and failing to report for induction into the armed forces of the United States pursuant to an order of his local draft board. He is one of 63 persons convicted under similar circumstances. By stipulation of counsel, it is agreed that the other cases shall be controlled by the decision in this case. Appellant is an American citizen. He was born in the United States of Japanese ancestry. He registered with his local draft board in California. Thereafter, in 1942, he was removed to and confined in a relocation center at Heart Mountain Park, Wyoming. At first he was classified in IV-C. Prior to the order to report, he was reclassified into 1-A. He was still confined in the relocation center when he was ordered to report for induction. Appellant was loyal to the United States at all times. There can be no question about this. The agent for the Federal Bureau of Investigation who investigated him after he failed to report testified that his attitude was that of being loyal to the United States; that he indicated no desire to live in Japan, and that he desired to fight for this country if he were restored to his rights as a citizen. Appellant’s entire appeal is predicated on the argument that his removal from his home and his confinement behind barbed wire in the relocation center without being charged' with any crime deprived him of his liberty and property without due process of law, and that therefore he ought not to be required to render military service until his rights were restored. Under the admitted facts as to his loyalty, he was restrained of his liberty by confinement in the relocation center. ile could have secured his complete release from restraint by writ of habeas corpus at any time and could thus have been restored to freedom. This would have given him the vindication which he seeks. It would have cleared his name for all time. But this he did not do. Instead, he chose to disobey a lawful order because he claimed his rights had been invaded. Two wrongs never make a right. One may not refuse to heed a lawful call of his government merely because in another way it may have injured him. Appellant was a citizen of the United States. Tie owed the same military service to his country that any other citizen did. Neither the fact that he was of Japanese ancestry nor the fact that his constitutional rights may have been invaded by sending him to a relocation center cancel this debt. Furthermore, the courts are not open to him to challenge his right to exemption from military service under the admitted facts. , It is now well settled that one must exhaust his administrative remedies and must obey the order to report before he may use the courts to challenge his classification. This was definitely settled by the Supreme Court in Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. Appellant concedes this, but argues that the decision in the Falbo case is wrong. In effect, he asks us to overrule the Supreme Court. No reason, to say nothing of. a cogent one, is given for this extraordinary request. Appellant also urges that this case is controlled by the decision in United States v. Kuwabara, D.C., 56 F.Supp. 716. We do not pass upon the soundness of that decision. It is sufficient to say that it is distinguishable upon the facts. The Selective Service Act makes it a penal offense to refuse to report for induction. It was appellant’s duty to report for induction and thereafter assert any claimed rights for exemption from military service by writ of habeas corpus. This he failed to do. Instead, he chose to ignore the order. As a result, he became subject to the penal provisions of the statute. Under the stipulation of the parties, this -decision is made applicable to the other -.sixty-two cases covered therein. Affirmed. Ex parte Mitsuye Endo, 1944, 323 U. S. 283, 65 S.Ct. 208. 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_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Carl Edwin CASE, Petitioner-Appellee, Cross-Appellant, v. Eloy MONDRAGON, Warden, Southern New Mexico Correctional Facility, Respondent-Appellant, Cross-Appellee, and Attorney General of the State of New Mexico, Respondent. Nos. 88-1685, 88-1748. United States Court of Appeals, Tenth Circuit. Oct. 25, 1989. Peter Schoenburg, Asst. Federal Defender, Albuquerque, N.M., for petitioner-appel-lee, cross-appellant. William McEuen, Asst. Atty. Gen. (Hal Stratton, Atty. Gen., with him on the briefs) Santa Fe, N.M., for respondent-appellant, cross-appellee. Before LOGAN, SETH and ANDERSON, Circuit Judges. STEPHEN H. ANDERSON, Circuit Judge. Petitioner, Carl Edwin Case, was tried in state court and convicted on a jury verdict of felony murder and criminal sexual penetration in the first degree. Following an unsuccessful state appeal Case sought federal habeas relief. The district court conditionally granted Case’s petition on one ground, and denied relief on another. Both parties have appealed. The issue upon which Case prevailed involves an allegation of jury misconduct. Case asserts that the state trial court violated his constitutional rights when it refused to question the jury after its verdict, with respect to allegations of internal jury misconduct “and/or” improper external influence. Case’s Answer and Reply Brief at 2. Those allegations arose from evidence that one or more jurors crossing the street to the parking lot after the last full day of trial may have either said or heard the following two comments: “[tjhat little gal [a state rebuttal witness] was lying on the stand this afternoon, that was obvious;” and “[h]e will be found guilty, there is no other way it can go.” The second issue arises from the state trial court’s denial of a continuance toward the end of the trial to enable the defense to bring in a newly-discovered witness. The witness supposedly would testify to having seen the victim several days after the date upon which the murder was charged to have occurred. The district court referred Case’s petition to the United States Magistrate for recommended findings and disposition. Based solely upon his review of the state court record, the magistrate determined that by refusing to hold a hearing at which the jurors could be examined, the state trial court “effectively denied Petitioner the opportunity to present his claim of bias and prejudice,” thus inflicting “a wrong of federal constitutional dimension.” Following a hearing at which the missing witness testified, the magistrate found against Case on the continuance issue. The magistrate recommended that Case’s petition be granted unless the state retried him within 120 days. The district court adopted the magistrate’s recommendations and entered judgment accordingly. We reverse on the jury misconduct issue, and affirm on the continuance issue. I. JUROR MISCONDUCT ISSUE A. Background. The guilt phase of Case’s trial lasted five and one-half trial days, beginning Tuesday, October 19, 1982 and ending at midday on Tuesday, October 26, 1982. The alleged incident of juror misconduct occurred Monday afternoon, October 25, apparently after court had recessed for the day. However, it did not come to light until after the guilt phase of Case’s trial had concluded and the jury had returned a guilty verdict. Deloris Reich, an individual unconnected with the trial, testified that between 4:20 p.m. and 4:40 p.m. Monday afternoon she observed “maybe a few” more than twelve people, in various groupings, cross the street during a period spanning a few minutes. R.Vol. XI at 2236, 2238, 2243-44. At another point Reich stated that “people started coming across the street, quite a few people. I don’t have any idea how many. They just kept coming.” R.Vol. X at 1902. They were crossing from the direction of the courthouse toward the vicinity where the jurors’ cars were parked. R.Vol. XI at 2249-50. After viewing the jury the following day Reich was able to state positively that at least some members of the jury were among the people she observed crossing the street. R.Vol. X at 1903-07, 1911; R.Vol. XI at 2236-37. As one group consisting of three or four men passed, Reich heard one of them say “[t]hat little gal was lying on the stand this afternoon, that was obvious.” R.Vol. X at 1902; R.Vol. XI at 2237. At the time Reich’s back was turned to the group and her attention was directed to her daughter who was in a parked vehicle, and with whom Reich had been conversing. Thus, Reich was not able to state who made the remark or who was in a position to hear it. R.Vol. X at 1902-03; R.Vol. XI at 2245. A few minutes later as Reich was crossing the street to get to her own vehicle she passed two women, one of whom was heard by Reich to remark “[h]e will be found guilty, there is no other way it can go.” R.Vol. X at 1908; R.Vol. XI at 2238. Reich’s back was to the women when the remark was made, R.Vol. XI at 2246, and her attention was directed toward getting across the street. R.Vol. X at 1908. However, she turned upon hearing the remark and looked at the women, observing the side of one woman’s face. R.Vol. XI at 2246. Reich testified “I will not and cannot swear that the lady on the jury is the one that said those words, nor a man on the jury said those words.” R.Vol. X at 1911. However, as indicated, Reich was firm in her conclusion that jurors were among those crossing the street, and she felt that the two ladies, one of whom made the remark in question, were members of the jury, but simply was unable to say “for absolutely sure.” R.Vol. XI at 2248-49. She expressed similar feelings with respect to at least one of the men in the group from which the other remark in question had been heard. Id. Reich, who was aware that a trial was going on, thought the two remarks in question were odd, R.Vol. X at 1914, R.Vol. XI at 2246, but did nothing about the matter until the following day, Tuesday, when she called Pam Thompson, a radio reporter friend of hers. Reich asked Thompson about the trial and was told that the jury had found Case guilty. Reich told Thompson she was not surprised by a guilty verdict “because of what I heard.” R.Vol. XI at 2247. The sentencing phase of Case’s trial commenced the following day, Wednesday, October 27. Apparently Thompson had Reich come to the courthouse that morning to see if she could identify members of the jury as those whom Reich had observed crossing the street. Reich was able to identify at least eight of the jurors (inclusive of the two alternates). R.Vol. X at 1907. Thompson then broadcast an account of what Reich had overheard. The matter came to the attention of Case’s counsel, who brought it up with the trial court immediately following the noon recess that same day. The court informed counsel that he had learned of the incident the previous evening, and had spoken to Reich on the telephone, but decided not to pursue the matter when Reich stated that she did not know if any jurors were involved. Since Reich had purportedly identified some of the jurors that morning the trial court permitted representatives of the two sides to go to Reich’s home to record an interview with her. R.Vol. X at 1900. A motion by defense counsel for an immediate voir dire of the still-impaneled jury was denied. At 3:30 p.m. that same afternoon, Wednesday, October 27, one of Case’s counsel, and an investigator for the state, returned to court with a tape of an interview with Reich in which she substantially recounted the events already described. The tape was played to the court and counsel in chambers. Case’s counsel then moved again for a voir dire of the jury and the motion was once again denied. R.Vol. X at 1917. The following afternoon, Thursday, October 28, after the jury had retired to deliberate on Case’s sentence, the trial court held an evidentiary hearing on the jury misconduct issue. As the following exchange between the court and Case’s counsel indicates, the defense was not limited in any way as to what it could present in that hearing, with the exception of a voir dire of the jury: “MR. MITCHELL:... And I think the first thing that comes first is presenting whatever evidence I may have in that regard, Your Honor, in addition to what was submitted to the Court yesterday on the record [referring to the tape recording of Reich’s interview.] THE COURT: I’ll be frank with you, nothing was submitted to the Court yesterday insofar as I could tell. But you may submit any other evidence. And I told you at that time you could.” R.Vol. XI at 2231 (emphasis added). Case’s counsel then produced Reich, who was examined and cross-examined under oath in open court, generally repeating what she had stated in the recorded interview. No other evidence was proffered. At the conclusion of the hearing Case’s counsel moved in the alternative for a mistrial on the ground of jury misconduct, and, for the third time, that permission be granted to voir dire the jury because of the evidence presented by Reich. Both motions were denied without explanation, R.Vol. XI at 2250, although the trial court had explained at the outset of the eviden-tiary hearing that: “THE COURT: I’m willing to listen to see if there was jury misconduct. And if there is jury misconduct and you can prove it to the Court, you are entitled, depending on when it occured, [sic] to a new trial, maybe to a new sentencing hearing. I don’t know.” R.Vol. XI at 2232-33. See also R.Vol. IX at 1818-20. And, earlier, the court stated: “But this is the way the lady sounded to me, and it just — we don’t know how many people are crossing the street.... She doesn’t know anything about this as to who said what to whom, and there isn’t any sense in pushing it.” R.Vol. X at 1917 (emphasis added). Thus, it is a fair inference that the trial court found no factual basis for the claim of juror misconduct sufficient to justify a voir dire of the jurors. Following the evidentiary hearing and the denial of Case’s motions to interrogate the jury or for a mistrial, the jury was brought back into the courtroom and announced their verdict that Case not suffer the death penalty. R.Vol. XI at 2252. The court then pronounced sentence and the jury was discharged. On appeal to the New Mexico Supreme Court the issue was stated as whether “the trial court abused its discretion by refusing to declare a mistrial or voir dire jurors following an allegation of juror misconduct.” State v. Case, 676 P.2d at 246. The court declared the standard to be: “If there is no evidence of probable juror impropriety, the trial court does not abuse its discretion by refusing to voir dire the jury.” Id. The court made the following findings with respect to Reich’s testimony: “A review of the record indicates that Reich was crossing the street with a group of people when she overheard the remarks but that she had no idea who made the remarks.... [S]he would not say positively that any comment she overheard was made by a juror or overheard by members of the jury. She admitted that she could not say that any juror said anything.... Reich was equivocal as she could not say that any juror made or heard the remarks in question." State v. Case, 676 P.2d at 246-47 (emphasis added). Based on its findings, the Supreme Court concluded: “There was insufficient proof of juror misconduct to overcome the presumption that the jury obeyed its instructions. We therefore find that the trial court did not abuse its discretion by refusing to voir dire the jury, nor by denying a motion for mistrial.” Id. at 247. Case’s initial appeal to this court was remanded to the United States District Court (Nos. 85-2937 and 86-1042, unpublished, March 6, 1987), for an evidentiary hearing at which either party could supplement the record on the jury misconduct issue. A hearing was held, but neither Case nor the state offered anything further. Thus, Case’s claim stands solely on the state court record and findings. B. Discussion. Our review of the district court’s decision centers on the effect and the deference, if any, to be accorded to the findings of the state courts. The magistrate’s report, adopted by the district court, omitted any discussion of the state court findings. The state argues that the district court improperly failed to accord a presumption of correctness to those findings. Case contends that his petition presents only a constitutional question of law, or one of mixed fact and law, requiring a de novo review of the record. More particularly, Case argues that the issue requires an independent federal review to determine whether there was sufficient evidence to compel a voir dire of the jurors: “The issue in this case is not whether the jury was biased or even whether jury misconduct occurred but rather whether there was sufficient evidence of jury misconduct and the prejudicial nature of that misconduct to mandate voir dire of the jury on that subject. The ultimate issue of what amount of evidence is enough to require under the federal constitution an inquiry of the jurors is a question of law.” Case’s Answer and Reply Brief at 12-13. Sufficiency of the evidence can be considered to be a mixed question of law and fact. See Graham v. Wilson, 828 F.2d 656, 659 (10th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988); Herring v. Blankenship, 662 F.Supp. 557, 565 (W.D.Va.1987). Thus, according to Case, the state court findings are entitled to no deference. The general rules are not in doubt. Explicit and implicit findings by state trial and appellate courts “shall be presumed to be correct,” 28 U.S.C. § 2254(d), unless one of seven factors listed in section 2254(d) are present, or the federal court concludes that the state court findings are not fairly supported by the record. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983); Sumner v. Mata (Sumner I), 449 U.S. 539, 545-47, 550, 101 S.Ct. 764, 768-769, 770, 66 L.Ed.2d 722 (1981); Baca v. Sullivan, 821 F.2d 1480, 1482 (10th Cir.1987); Bedford v. Smith, 543 F.2d 726, 729-30 (10th Cir.1976). The presumption applies to basic, primary, or historical facts and the inferences that can properly be drawn regarding them. Marshall v. Lonberger, 459 U.S. at 431-32, 103 S.Ct. at 849-50; Cuyler v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) (“ ‘[I]ssues of fact’ refers ‘to what are termed basic, primary, or historical facts: facts “in the sense of a recital of external events and the credibility of their narrators ”(emphasis added) (quoting Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963))); Phillips v. Murphy, 796 F.2d 1303, 1306 (10th Cir.1986). No presumption of correctness attaches to legal conclusions or determinations on mixed questions of law and fact. Those are reviewed de novo on federal habeas review. Sumner v. Mata (Sumner II), 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982); Chaney v. Brown, 730 F.2d 1334, 1346 (10th Cir.1984). However, the presumption of correctness will continue to apply to any findings of fact underlying mixed questions, typically “ultimate” constitutional issues such as due process. Marshall v. Lonberger, 459 U.S. at 431-32, 103 S.Ct. at 849-50; Sumner II, 455 U.S. at 597, 102 S.Ct. at 1306; Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir.), cert. denied, — U.S. -, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989); Hunt v. Oklahoma, 683 F.2d 1305, 1309 (10th Cir.1982). This will even be the case when, as here, those findings might resolve or dispose of the “ultimate” mixed question. See, e.g., Baca v. Sullivan, 821 F.2d at 1482; Phillips v. Murphy, 796 F.2d at 1306. In the broadest terms, the issue presented here is whether Case’s due process rights were infringed when the trial court refused permission to voir dire the jury regarding the alleged juror misconduct. This ultimate issue of due process is a mixed question of law and fact. Cf. Chaney, 730 F.2d at 1346; Hunt, 683 F.2d at 1309. Thus, the section 2254(d) presumption does not apply to this ultimate issue. However, whether or not the jurors made or heard the comments in question is unquestionably a matter of basic, primary, or historical fact. See Rushen v. Spain, 464 U.S. at 120, 104 S.Ct. at 456. That is especially true where, as here, the fact determination necessarily included an evaluation of the demeanor and credibility of the sole witness, Deloris Reich. Questions of witness credibility are usually considered to be issues of fact. See Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953). The state trial court was in a far better position than any other tribunal to assess the credibility of Reich, having taken her live testimony. Such practical considerations are relevant to distinguishing issues of fact and law. As the Supreme Court suggested in Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 451-52, 88 L.Ed.2d 405 (1985): “[T]he decision to label an issue a ‘question of law/ a ‘question of fact/ or a ‘mixed question of law and fact’ is sometimes as much a matter of allocation as it is of analysis. [Citation omitted]. At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question.” See also Graham v. Wilson, 828 F.2d 656, 659 (10th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988). As our summary of the record discloses, the state courts both explicitly and implicitly determined that at best Reich’s testimony was equivocal and uncertain. “[S]he could not say that any juror made or heard the remarks in question.” State v. Case, 676 P.2d at 247. Case urges that the testimony was enough to trigger a constitutional requirement for further investigation by way of a voir dire of the jurors. We disagree. Giving full deference to the state’s findings, Reich’s testimony supports nothing more than speculation and conjecture. No constitutional duty to resort to the drastic step of a post-verdict voir dire of a jury can arise on evidence which raises nothing more than a mere possibility of misconduct. See Tanner v. United States, 483 U.S. 107, 126, 107 S.Ct. 2739, 2750, 97 L.Ed.2d 90 (1987). Although Case invokes virtually all of the exceptions to the presumption of correctness under 28 U.S.C. § 2254(d), we conclude that none apply. Other than the fact that the trial judge declined to voir dire the jurors regarding the alleged misconduct, Case can identify absolutely no shortcomings in the procedure by which the material facts were investigated, developed, and resolved. The judge gave Case every opportunity to investigate the incident, using nonjuror sources. Case received a full, fair, and adequate evidentiary hearing to present his arguments. After hearing all the testimony and arguments presented on the issue, the trial judge ruled against Case on the merits, and that was affirmed by the state supreme court. On federal habeas review Case was given a further chance to present evidence on the jury misconduct issue and chose not to do so. With respect to the final exception under section 2254(d), despite Case’s argument to the contrary, our independent review of the state court record satisfies us that the factual determinations by the state courts are “fairly supported.” In short, no section 2254(d) exception applies to diminish or avoid the statutory presumption of correctness which we must accord to the state court findings. Finally, if a federal court seeks to avoid the presumption under one of these eight exceptions, it must explain its reasons in writing. Sumner I, 449 U.S. at 551, 101 S.Ct. at 771 (“[W]e now hold that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present, or the reasoning which led it to conclude that the state finding was ‘not fairly supported by the record.’ ”). The federal magistrate failed to explain clearly, as required by Sumner I, the reasons why he chose to overlook the section 2254(d) presumption. In fact, no reference to section 2254(d) is made at all. Even assuming the magistrate did consciously consider the import of section 2254(d) but found the presumption not to apply because of one of the enumerated exceptions, we are unsure which exception the magistrate intended. We do not believe the magistrate’s findings, adopted by the district court, fulfilled the directives of Sumner I, and Smith v. Phillips, 455 U.S. 209, 218, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982). According the full presumption of correctness to the state court findings on the basic and primary facts from which this issue arises we cannot conclude that the state trial court violated Case’s constitutional rights when it refused to conduct a post-verdict voir dire of the jury. The district court’s decision to the contrary, and which failed to set forth reasons why the presumption of correctness should not apply, is erroneous. II. In his petition to the district court Case also alleged that he was denied his right to present evidence in his own defense when he was denied a continuance to obtain the testimony of a witness, Michelle Kent, who was alleged to have seen the victim a few days after the date upon which the victim was supposed to have been murdered. After a hearing at which Ms. Kent testified, the magistrate concluded that Kent’s tentative identification testimony would not have been sufficient to create a reasonable doubt that did not otherwise exist in the minds of the jurors. Therefore, Case was not materially prejudiced by the trial court’s refusal to grant a continuance. The district court adopted the magistrate’s recommendation, and denied Case’s petition on this issue. As previously indicated, the guilt phase of Case’s trial began on Tuesday, October 19, 1982, and concluded at midday on Tuesday, October 26, 1982. On Friday afternoon, October 22, 1982, during the case-in-chief for the defense, Case’s counsel learned that a woman may have seen the victim alive after the date upon which she was alleged to have been murdered. Counsel represented to the court that the witness, who turned out to be Michelle Kent, was unavailable and that counsel did not know her whereabouts, although an investigator was attempting to find out that information. Case’s counsel then stated to the court: “I doubt very seriously the Court would grant us a continuance to find this particular witness. If the Court is going to grant us a continuance, that is great and I would move for one on this particular witness, but the declarant is un-available_ We have been unable to locate her.” R.Vol. VII at 1355. A second request for a continuance was made the following Monday, after the defense had rested and the state had completed its rebuttal. R.Vol. VIII at 1573-75. Case’s counsel represented to the court at that time that Michelle Kent had been located, and he moved for a continuance, “to rent a plane, or whatever, to fly that girl back out here so I can put her on the stand.” R.Vol. VIII at 1574. Counsel then made a proffer that Kent would testify “she did see the victim on the sixth day of January, five days after her alleged murder, and that the victim was alive and well, and that Kent did recognize her.” Id. The state objected on the ground, among other things, “that the defense was asking for an opportunity to reopen its case.” Id. at 1575. The court thereafter denied the motion for a continuance. The third request for a continuance came the next day, midway through surre-buttal. At that time defense counsel was still seeking time to prepare a witness certificate. R.Vol. VIII at 1613-15. The trial judge again denied the motion and stated that if the defense had spent as much time investigating as they had in filing thirty motions right before the trial they might have found the witness sooner. R.Vol. VIII at 1616. Kent testified at the hearing on this issue before the United States Magistrate. She stated that she knew the victim, Nancy Mitchell, pretty well, having gone to school with her during the several months prior to her death. Kent and Mitchell were two of the eight cheerleaders for the school, practicing together daily, and traveling together to football games at least once a week. In addition, Mitchell had taken Kent home “a lot of times,” and Kent visited the Mitchell home on two or three occasions. Kent further testified that Mitchell had “real blonde, blonde hair and it was real straight.” She also described it as “white, real white.” EHT at 11. With respect to the incident in question, Kent testified that a few days, maybe a week, after January 1, 1982, she saw a woman whom she believed to be Nancy Mitchell. On that occasion, Kent was standing with Tammie Simmons in front of her house on the west side of Halgaino, three houses south of Church Street, a four lane roadway. The two women heard someone honk a car horn. They looked in the direction of the noise. Kent saw a person for a few seconds at least 100 feet away, driving a blue car, which was moving onto Church Street from the drive-through at the Pizza Mill, which was located on the northeast corner of the intersection. The woman driving the car waved. And, she turned herself towards Kent such that Kent could see her hair and part of her face. Kent testified: “[W]e heard someone honk and we looked and she was waving, and she had blonde hair, and it looked like her, I am not for sure it was, but it looked like her, and she was waving at us, so I said, ‘Look, there is Nancy’ or ‘It looks like Nancy’ because she was missing no one had seen her, and so we waved.” EHT at 10. Kent acknowledged that Mitchell’s car was a gold Camaro, not the blue car which Kent observed. EHT at 15. After listening to Kent’s testimony, and observing her demeanor on the witness stand, the magistrate found that Kent’s testimony was equivocal, and called attention to the following excerpt from Kent’s testimony: “Q. Now, Ms. Kent, you are not at all sure this was Nancy Mitchell, are you? A. It looked like her. I don’t know if it was or not. Q. You don’t know if it was or not? A. No. Q. It could have been someone else? A. It could have been. Q. You are uncertain as to whether it was Nancy Mitchell or not? A. Uh-huh. Q. Have you ever told anyone you were positive it was Nancy Mitchell? A. No. Transcript at 20-21. On re-direct examination, Kent responded as follows: Q. How well do you know Nancy Mitchell? A. Pretty well. Q. Okay. And you saw this person, you saw her hair and at least half of her face; is that right? A. Uh-huh. Q. Okay. Let me put it this way: Would you say that you were pretty sure that it was Nancy Mitchell. A. It looked a lot like her. Transcript at 24.” Amended Magistrate’s Proposed Findings and Recommended Disposition at 3-4. With respect to cases on direct appeal, we review the district court’s decision to deny a continuance for abuse of discretion, and do not reverse unless we conclude that the denial was arbitrary or unreasonable and materially prejudiced the appellant. See United States v. West, 828 F.2d 1468, 1469 (10th Cir.1987). In West, we stated that “[t]he determination whether ‘the denial of a continuance constitutes an abuse of discretion turns largely upon the circumstances of the individual case.’ ” Id. at 1469-70 (quoting United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.1985)). We thereafter listed several factors which may be considered in determining whether a denial of a continuance is arbitrary and unreasonable, including: “the diligence of the party requesting the continuance; the likelihood that the continuance, if granted, would accomplish the purpose underlying the party’s expressed need for the continuance; the inconvenience to the opposing party, its witnesses, and the court resulting from the continuance; a need asserted for the continuance and the harm that appellant might suffer as a result of the district court’s denial of the continuance. No single factor is determinative and the weight given to any one may vary, depending on the extent of the appellant’s showing on the others.” United States v. West, 828 F.2d at 1470 (citations omitted). However, when a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion, but “it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.” Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981). See Nieto v. Sullivan, 879 F.2d 743, 749 (10th Cir.1989) (“The standard that governs in a habeas proceeding ‘is “the narrow one of due process, and not the broad exercise of supervisory power.” ’ ” (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting in turn Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)))). “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.” Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964). The parties devote a great deal of argument to questions relating to the diligence of Case’s counsel, usefulness of the continuance, inconvenience, and other factors listed in West. However, we must focus on Case’s need for a continuance and the prejudice or lack of prejudice resulting from its denial, in the context of a fundamental fairness evaluation. We have read the entire record in this case and are convinced that the trial court’s denial of a continuance did not undermine the fundamental fairness of Case’s trial. Case argues that Kent’s testimony was unique and absolutely fundamental to his defense. Although he was able to present two other witnesses, a husband and wife, who stated that they had seen the victim, Mitchell, at a party on a date subsequent to the alleged date of her murder, that testimony had been discredited by evidence from the state medical examiner that Mitchell could not have been alive on the date of the party. Kent’s alleged sighting was within a shorter and more credible time frame. However, the tentative and equivocal nature of Kent’s testimony with respect to the fleeting sighting of a girl in a moving automobile, which was not Mitchell’s, more than one hundred feet away from Kent, must be evaluated in the context of the entire trial. Case’s own testimony placed him in the company of the victim and at the scene of the incident in question. There was testimony that prior to that time Case and others had discussed taking the victim to a location and forcing her to engage in sexual intercourse. There was eyewitness testimony that at the place and time in question, the victim was assaulted sexually by Case and others, and beaten into a state of unconsciousness. According to eyewitness testimony Case assisted in dragging the unconscious victim away and abandoning her. In view of this and other evidence, we agree with the magistrate’s finding that “Kent’s tentative identification testimony would not have been sufficient to create a reasonable doubt that did not otherwise exist in the mind of the jurors.” Accordingly, it cannot be said that the district court erred in its conclusion that Case’s constitutional rights were not violated by the trial court’s refusal to grant a continuance to obtain Kent’s testimony. III. CONCLUSION We have carefully considered all of the arguments of the parties, addressing those we deemed necessary. For the reasons stated herein, we AFFIRM the denial of Case’s petition for a writ of habeas corpus on the continuance issue, and REVERSE the conditional grant of the writ on the juror misconduct issue. . State v. Case, 100 N.M. 714, 676 P.2d 241 (1984). . Because the magistrate did not receive any live testimony on the issue, but merely made findings based upon a review of the state record, the “clearly erroneous” standard does "not apply with full force" to the magistrate’s findings, Archuleta v. Kerby, 864 F.2d 709, 711 n. 2 (10th Cir.), cert. denied, — U.S. -, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989); Castleberry v. Alford, 666 F.2d 1338, 1342 n. 2 (10th Cir.1981), or, more accurately stated, the findings are not given the special deference normally accorded findings based upon a court’s assessment of witnesses’ credibility. See Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). . 28 U.S.C. § 2254(d) lists the following factors by which the presumption of correctness may be avoided: “(1) that the merits of the factual dispute were not resolved in the State court hearing; (2) that the factfinding procedure employed, by the State court was not adequate to afford a full and fair hearing; (3) that the material facts were not adequately developed at the State court hearing; (4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding; (5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appel1_3_2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES of America, Appellant, v. Lucy Thomas POWELL, Nellie Louise Powell and Elmer E. Fox, as Co-Executors under the will and of the Estate of Leonidas Hudson Powell, deceased, Appellees. No. 6920. United States Court of Appeals Tenth Circuit. July 13, 1962. William Jay Howard, Atty., Dept. of Justice, (Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson and I. Henry Kutz, Attys., Dept. of Justice, Newell A. George, U. S. Atty., and Robert M. Green, Asst. U. S. Atty., were with him on the brief) for the United States of America. John F. Eberhardt, Wichita, Kan. (George B. Powers, Carl T. Smith, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, Kan., were with him on the brief) for appellees. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. PHILLIPS, Circuit Judge. Lucy Thomas Powell, Nellie Louise Powell and Elmer E. Fox, coexecutors of the estate of Leonidas Hudson Powell, deceased, brought this action against the United States to recover federal estate taxes paid by them on the Powell estate. The action was tried to the court without a jury and judgment was entered in favor of the taxpayers in the sum of $55,-762.46. The United States has appealed. On June 4, 1932, Leonidas Hudson Powell created an irrevocable living trust. The trust instrument designated Powell and the Fourth National Bank in Wichita as cotrustees. Under it, Powell’s wife is the life tenant and his two daughters are the remaindermen. The income of the trust is payable to the wife at her request, but if not so requested, it is added to the principal. On the death of the wife, the residue of the trust is to be divided into equal shares for the benefit of the two daughters, or their surviving issue, per stirpes. Upon reaching the ages of 37, 47, 52, 57 and 62, each daughter is to receive a one-fifth portion of her share of the trust corpus. The trust also makes provision for alternative dispositions in the event of the death of the daughters without issue prior to final distribution. Powell died on May 16, 1954. An estate tax return was filed which did not include the assets of the trust in the gross estate. The Commissioner of Internal Revenue assessed a deficiency predicated upon the inclusion of such trust assets in the gross estate, which was paid under protest by the taxpayers. A claim for refund was duly filed, which was disallowed by the Commissioner. The instant action was then commenced. The trust instrument provides, in part, as follows: “Second: * * * “During the lifetime of the grantor and while he is acting as a Joint-Trustee hereunder the said Trustees are expressly authorized and empowered to sell, contract for sale, mortgage, pledge, hypothecate, or otherwise deal with the assets comprising this trust estate, and to invest, or re-invest the said trust property or any part thereof in such securities or other property, real or personal, as in the discretion of said Trustee-may be deemed most advisable for the benefit of the trust estate herein-created, including the right to purchase life insurance, annuity contracts or income bearing contracts, issued by legal reserve life insurance companies authorized to do-business in the State of Kansas. “Upon the death of the grantor or upon his incapacity to act, or resignation as Joint-Trustee hereunder, thereafter the Trustees shall invest or re-invest only in high grade municipal, Government, or other bonds, or any loans secured by first mortgages on farm lands or improved’ City real estate located in a productive part of the country, such mortgage loans not to exceed forty per cent (40%) of the fair market value of such real estate as in the discretion of the Trustees shall be deemed' most advisable in order to assure a reasonably safe investment, and to produce satisfactory income, the protection of the principal however to be more important than securing: higher rate of income. # * , •* * * * “The Trustees of this estate shall not be held responsible for any loss resulting to this trust estate by reason of retaining any previous investments made by the said Trustees while the grantor is acting as one of the Trustees hereunder. “Fifth: If, at any time during the continuance of this trust, it is necessary or advisable to use some portion of the principal for the maintenance, luelfare, comfort or happiness of the •Grantor’s wife, * * * or Grant- or’s daughters, * * * or for the education of Grantor’s said daughters, the Trustee is hereby authorized and empowered to use so much of the principal as in the discretion of the Trustee is necessary or advisable to be used to meet such conditions, and provided that the Trustee shall deem that the purpose for which the payments are to be made, justifies the reduction in the principal of the trust properties. * * * ” (Emphasis added.) The trust instrument contained no exculpatory clause, other than that quoted above. At the time of the creation of the trust, June 4, 1932, the corpus had a value of approximately $60,000. Mr. Powell’s income for each of the years of 1931 and 1932, before taxes, was approximately $100,000 and his net worth in 1932 was-$502,628. Mrs. Powell’s net worth in 1932 was $59,452. In the period between the creation of the trust and Powell’s death, Mrs. Powell withdrew $32,000 of trust income and left the balance of such income in the trust. At the death of Powell, the accumulated and reinvested trust income totalled approximately $210,000 and the value of the trust corpus was approximately $170,000. From time to time during his life Powell made gifts to his wife and daughters from his personal assets, totalling over .$200,000. The taxpayers called five witnesses, who testified that during his life Powell was an extremely conservative, frugal and thrifty person. In 1940 Powell hired his son-in-law to work in his grain elevator business at a salary of $100 per month. At this time such son-in-law had no outside income and was required to support his family on this amount. Such salary had been raised to $400 per month when the son-in-law left the business in 1945 or 1946. Powell was 63 years old when he created the trust. He actively engaged in the grain elevator business until 1944, at which time he sold his business and retired. Until a few years before his death, he remained vigorous and actively managed his investments. In its findings of fact the court, in part, found: “10. * * * in all of his business, personal, and family affairs Mr. Powell was an extremely conservative, frugal and thrifty person to whom the thought of making distributions to his wife or daughters from the corpus of the June 4, 1932, living trust for the purpose of administering to their subjective pleasures or ‘happiness’ — as distinguished from distributions necessary to maintain them according to the conservative standard of living to which they had been accustomed — would have been repugnant. * * * “11. * * * that * * * paragraph Fifth of the * * * living trust was intended by the settlor, * * , to mean only that distributions might be made to his wife and two daughters from the corpus of the trust if, but only if, such use of the corpus were required to maintain them in the conservative mode of living to which they had been accustomed during his lifetime, and that as used by Mr. Powell the word ‘happiness’ in the phrase ‘maintenance, welfare, comfort or happiness’ was intended to and must be equated with basic maintenance and welfare, not with ‘pleasure’ or subjective ‘delight.’ ” Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, in part provides: “§ 811. Gross estate “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, * . *** “(d) Revocable transfers **** “(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * * The court concluded that the investment powers and the power to invade the corpus did not reserve to the settlor power to “alter, amend, revoke, or terminate” the trust within the meaning of § 811(d) (2) of the Internal Revenue Code of 1939 and that the deficiency was improperly determined. The contentions of counsel for the United States are: 1. The decedent’s power to invest in life insurance or annuities constituted power to alter or amend the corpus of the trust, within the meaning of § 811(d) (2); 2. The decedent’s power to invade the trust corpus for the benefit of his family’s “happiness” constituted a power to alter and amend the trust, within the meaning of § 811(d) (2); and 3. The powers retained, if not sufficiently broad individually, were sufficiently extensive cumulatively to require inclusion of the trust corpus in the gross estate. I The Investment Powers It will be observed that the trustees were to exercise their power of investment, including the power to purchase life insurance, annuity contracts, or income bearing contracts in a manner deemed by them in the exercise of their discretion to be for the benefit of the trust estate. It will be further observed that the trust instrument gave the set-tlor no direct power to alter or amend the corpus of the trust or the trust instrument, itself, and if it did give the settlor power to affect beneficial interests, it did so indirectly, as a secondary consequence of the exercise of administrative investment powers. It should be noted, also, that there were no provisions in the trust instrument manifesting an intent to give the trustees broad powers of investment without limitation or restraint, to exculpate them from improper exercise of those powers, to authorize them to act individually, rather than as fiduciaries, in the exercise of such powers, or to prevent a court of equity from reviewing their exercise of such powers and correcting any abuses of discretion. The trust instrument was executed and was to be carried out in the State of Kansas, for the benefit of persons who were citizens and residents of that state. It was governed, therefore, by Kansas law. It is well settled, under the law of Kansas, that a court of equity has power to review the exercise of discretionary powers conferred upon trustees and to correct any abuse in the exercise of such discretion. The Supreme Court of Kansas so held in Keeler v. Lauer, 73 Kan. 388, 85 P. 541, 543, with respect to a trust instrument which gave large discretionary powers to the trustee. It reiterated that doctrine in In re Porter’s Estate, 164 Kan. 92, 187 P.2d 520, 525, in which the court said: “Notwithstanding the powers and discretion given to the trustee he is subject to the direction and control of a court of equity, which will have full power to prevent mismanagement of the estate and to correct any abuses of the trust.” Counsel for the United States assert that the investment power, with respect to life insurance, annuities and income bearing contracts, authorized the trustees to invest the corpus so as to deprive the life tenant, the wife, of all income and of all benefits of the trust and, conversely, to invest the corpus in annuities for the term of the wife’s life and thereby deprive the re-maindermen, the daughters, of all benefits of the trust. In our opinion, the instrument gave the trustees no such unbridled discretionary power or authority. It is well settled that where there are two or more beneficiaries of a trust, it is the duty of the trustee to administer the trust impartially, as between the beneficiaries, and where a trustee under a trust is directed to pay the income to a beneficiary during his life and on his death to pay the income from the trust or the corpus to another beneficiary, it is the duty of the trustee so to administer the trust as to preserve a fair balance between them. Accordingly, it was the duty of the trustees in the exercise of their discretion to invest the corpus for the benefit of the trust estate and in such a manner as to preserve a fair balance between the life tenant and the remainder beneficiaries. That constituted an ascertainable, external and judicially established standard, enforceable by courts of equity in the exercise of their powers to review the action of trustees in administering trusts. We have no doubt that the courts of Kansas, in the event the trustees under the instant trust so exercised their investment powers partially as between the life tenant and the remainder beneficiaries and so as not to preserve a fair balance between them, would hold that the trustees had abused their discretion and were subject to judicial review and control. Counsel for the United States rely heavily on State Street Trust Company v. United States, 1 Cir., 263 F.2d 635. That case was predicated upon § 811(c) (1) (B) of the Internal Revenue Code of 1939. It involved three spendthrift trusts, established in 1925. The trusts gave to the trustees these extraordinarily broad powers: “ * * * to retain and invest and reinvest in securities or properties although of a kind or in an amount which ordinarily would not be considered suitable for a trust investment, including, but without restriction, investments that yield a high rate of income or no income at all and wasting investments, intending hereby to authorize the Trustees to act in such manner as it is believed by them to be for the best interests of the Trust Fund, regarding it as a whole, even though particular investments might not otherwise be proper; * * * to determine what shall be charged or credited to income and what to principal notwithstanding any determination by the courts and specifically, but without limitation, to make such determination in regard to stock and cash dividends, rights, and all other receipts in respect of the ownership of stock and to decide whether or not to make deductions from income for depreciation, amortization or waste and in what amount; * * * and generally to do all things in relation to the Trust Fund which I, the Donor, could do if living and the Trust had not been executed.” Each contained the following exculpatory clause: “All such acts and decisions made by the Trustees in good faith shall be conclusive on all parties at interest and my Trustees shall be liable only for their own wilful acts or defaults, but in no case for acts in error of judgment.” In holding that the trust came within the provisions of § 811(c), the court said: “Perhaps no single power conferred by the decedent on the trustees would be enough to warrant inclusion of the corpora of the trusts in his estate. But we believe that the powers conferred on the trustees, considered as a whole, are so broad and all inclusive that within any limits a Massachusetts court of equity could rationally impose, the trustees, within the scope of their discretionary powers, could very substantially shift the economic benefits of the trusts between the life tenants and the remaindermen. We therefore conclude that under the trusts the decedent as long as he lived, in substance and effect and in a very real sense, * * * ‘retained for his life * * * the right * * to designate the persons who shall possess or enjoy the property or the income therefrom; * * * ’ ” The case, in our opinion, is clearly distinguishable on the facts. In that case, the First Circuit held that the powers of the trustees were so broad and all inclusive that they were not within any limitation the Massachusetts court of equity could rationally impose. In contrast with the broad powers given the trustees in the State Street Trust case, it should be noted that the trust instrument in the instant case did not give the trustees any power to exchange trust property for other property, to invest and reinvest “without restriction” in speculative securities yielding a high rate of income, in “no income” producing securities, or in wasting assets, or to allocate receipts, including stock dividends and stock rights, as between principal and income, nor “generally to do all things in relation to the Trust Fund,” which the settlor “could do if living and the Trust had not been executed,” and in the instant case, the trust instrument did not, as in the State Street Trust case, undertake to exculpate the trustees from liability, other than for wilful acts or defaults. We conclude the investment power given to the trustees by the trust instrument was subject to and limited by a judicially established and judicially enforceable external and ascertainable-standard and, hence, was no more than-a management or administrative power, and that in exercising it the settlor acted in a fiduciary capacity, as trustee, and not individually. It follows that the granting of the investment power did not give the settlor power to alter and amend the corpus of the trust, within the meaning of § 811 (d) (2), supra. II The Power to Invade the Corpus The trust instrument gave the trustees power to invade the corpus, if they deemed it necessary or advisable to provide for “the maintenance, welfare, comfort or happiness of the Grantor’s wife, * * * or Grantor’s daughters, * There is nothing in the context in which the term “happiness” is found, or in the instrument as a whole, that indicates an intent that it should be given a broader connotation than its usual and ordinary meaning. Rather, the contrary is indicated by the qualifying language that resort to principal should not be made, unless the need “justifies the reduction in the” corpus. The usual and ordinary meaning of “happiness” is “a state of well-being characterized by relative permanence.” Webster’s New International Dictionary, Second Ed., Unabridged, p. 1136. It is synonymous with “comfort” or “welfare.” Macmillan’s Modern Dictionary, Rev.Ed.1944; Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900. It is “That more permanent enjoyment of life which attends on, and is almost identical with, welfare.” 39 C.J.S. Happiness p. 773. Webster’s New Collegiate Dictionary, 11th Ed., 1959, p. 375, defines “happy” as “enjoying well-being, peace, and comfort.” Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900, defines “welfare” as “state or condition in regard to well-being; esp., condition of health, happiness, prosperity, or the like.” In its ordinary sense “happiness” has the characteristic of permanence or endurance, as distinguished from pleasure, which is transitory. Funk & Wag-nail’s Synonyms, Antonyms and Prepositions, Rev.Ed.1947, delineates the objective qualities of “happiness,” as contrasted with “pleasure,” as follows: “Happiness is * * * more serene and rational than pleasure; pleasure is of necessity transient; happiness is abiding; thus, we speak of pleasures, but the plural of happiness is scarcely used. Happiness, in the full sense, is mental or spiritual or both, and is viewed as resulting from some worthy gratification or satisfaction; we can speak of vicious pleasure or delight, but not of vicious happiness * * There are many adjudicated cases holding that the terms “happiness,” “welfare,” and “comfort” are synonymous. It is true that the United States Supreme Court in Merchants Nat. Bank of Boston v. Commissioner, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35, construed the word “happiness,” as used in the trust there involved, as having a broader meaning than “welfare” and “comfort.” In that case the will authorized the trustee to invade the corpus: “ * * * at such time or times as my said Trustee shall in its sole discretion deem wise and proper for the comfort, support, maintenance, and/ or happiness of my said wife, and it is my wish and will that in the exercise of its discretion with reference to such payments from the principal of the trust fund to my said wife, * * * my said Trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.” It is clear, we think, that the court accorded such broader connotation to the word “happiness,” because of the context in which it was found and, particularly, the instructions to the trustee to exercise its discretion with liberality to the wife and to consider her welfare, comfort and happiness prior to the claims of the residuary beneficiaries. In the opinion the court said: “ * * * Introducing the element of the widow’s happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome, * * >> Here, the trust instrument not only did not provide that the power to invade the corpus should be exercised with liberality and to gratify the wishes of the beneficiaries, but, on the contrary, indicated that the power should be exercised with restraint and only when the purpose justified a reduction of the corpus. Of course, the exercise of discretion to invade the corpus with liberality and in accordance with the wishes of a beneficiary is not a power restricted by a fixed standard. Likewise, Henslee v. Union Planters Bank, 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259, is distinguishable from the instant case. There, the will authorized and empowered the trustees to invade or wholly utilize the corpus for the life tenant’s (the mother of the decedent) “pleasure, comfort and welfare” and stated that “The first object to be accomplished * * is to take care of and provide for my mother in such manner as she may desire” and directed the trustees to manage the estate “primarily for this purpose.” We are of the opinion that the word “happiness,” in the sense it is used in the trust instrument, is synonymous with “welfare” and “comfort.” It is well settled that the words “welfare” and “comfort” provide an ascertainable and judicially enforceable external standard. We conclude that the provisions in the trust instrument giving the trustees power to use the corpus “for the maintenance, welfare, comfort or happiness” of the beneficiaries and for the “education” of the daughters, the remaindermen, “provided * * * the purpose for which the payments are to be made, justifies the reduction in” the corpus, established an ascertainable, external and judicially enforceable standard and that the trustees, in exercising such power, were limited by such standard and the supervision and control of the courts of Kansas in the exercise of their equity powers. Hence, the authority given the trustees to invade the corpus did not give to the settlor power to alter or amend the trust, within the meaning of § 811(d) (2). Ill The Cumulative Effect of Such Powers In view of the conclusion we have reached, with respect to the investment power and the power to invade the corpus, it is our opinion that their combined or cumulative effect would not bring the trust within § 811(d) (2). Here, the whole is no greater than the sum of its parts. The judgment is affirmed. . See Scott on Trusts, 2nd Ed., Vol. II, § 183; Redfield v. Critchley, 252 App.Div. 568, 300 N.Y.S. 305, 310, affirmed, 277 N.Y. 366, 14 N.E.2d 377; Restatement of the Law of Trusts, § 183. . Pennsylvania Co., Etc. v. Gillmore, 137 N.J.Eq. 51, 43 A.2d 667, 670, 671; Security Trust Co. v. Mahoney, 307 Ky. 661, 212 S.W.2d 115, 119; In re Simpson’s Will, Sur., 33 N.Y.S.2d 614, 616; Restatement of the Law of Trusts, § 232; Scott on Trusts, 2nd Ed., Vol. III, § 232, p. 1744. . Cf. Estate of Willard P. King, 37 T.C. 973 (decided February 21, 1962). . National Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295, 36 A.L.R. 1171; Combs v. Carey’s Trustee, Ky., 287 S.W.2d 443; Industrial Trust Co. v. Commissioner of Int. Rev., 1 Cir., 151 F.2d 592, 594, 169 A.L.R. 144, c. d. 327 U.S. 788, 63 S.Ct. 807, 90 L.Ed. 1014; Estate of Albert E. Nettleton, 4 T.C. 987, 993; Gannert v. Rupert, 2 Cir., 127 F. 962, 963; Wiseman v. Tanner, D.C.Wash., 221 F. 694, 698, reversed on other grounds, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336; In re Buell’s Estate, 198 Misc. 358, 66 N.Y.S.2d 180, 185; English v. English, 32 N.J.Eq. 738, 750, 751; 39 C.J.S. Happiness p. 773. . The interpretation we have placed on the opinion in the Merchants Bank case finds support in the following adjudicated cases: Commissioner of Int. Rev. v. Wells Fargo B. & U. Tr. Co., 9 Cir., 145 F.2d 130, 132; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 592; Lincoln Rochester Tr. Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425; Lincoln Rochester Trust Company v. McGowan, 2 Cir., 217 F.2d 287, 291. . In the following cases the quoted language was held to provide an ascertainable, external and judicially enforceable standard: Ithaca Trust Co. v. United States, 279 U.S. 151, 154, 49 S.Ct. 291, 73 L.Ed. 647, “from the principal any sum ‘that may be necessary to suitably maintain her in as much comfort as she now enjoys’”; Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 36 E.2d 710, “to pay over to * * * my said wife (the life tenant) any part of the principal * * * which it (the trustee) may deem necessary or advisable for her comfortable maintenance and support”; Berry v. Kuhl, 7 Cir., 174 F.2d 565, 566, payment from principal to life tenant for “treatment, support or maintenance”; Lincoln Rochester Trust Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425, 427, to advance to the life tenant “such sums of principal as may be necessary for her proper care, support and maintenance”; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 591, to pay to the life tenant “from the principal any amount in their discretion for her comfort and welfare”; Jennings v. Smith, 2 Cir., 161 F.2d 74, 75, 76, to use net income “to enable the beneficiary * * * to maintain himself and his family * * * in comfort and in accordance with the station in life to which he belongs”; Blunt v. Kelly, 3 Cir., 131 F.2d 632, to use such portion of the principal as the trustees may deem proper “for the support, care or benefit of” the settlor; Estate of Walter E. Frew, 8 T.C. 1240, 1241, 1244, 1245, power of the trustees “in their sole discretion, if at any time * * * the net income payable to any beneficiary shall, in their opinion, be insufficient for the proper maintenance and support of said beneficiary, apply to such purposes so much of the respective part of the principal from which said income is derived as they may deem proper”; Estate of Horace G. Wetherill, 4 T.C. 678, 679, 681-684, invasion of corpus for “care, maintenance and support” of life tenant, Petition to Review dismissed 150 F.2d 1019; Estate of Lucius H. Elmer, 6 T.C. 944, invasion of corpus for “comfortable support” of life tenant. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_state	24	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". MOVIE SYSTEMS, INC., an Iowa corporation, Appellee, v. MAD MINNEAPOLIS AUDIO DISTRIBUTORS, A DIVISION OF SMOLIAK & SONS, INC., a Minnesota corporation, and of Video Club, Inc.; and Gary Smoliak, Appellants. No. 82-1799. United States Court of Appeals, Eighth Circuit. Submitted March 16, 1983. Decided Sept. 2, 1983. Marc G. Kurzman, Kurzman, Shapiro, Manahan & Partridge, Minneapolis, Minn., Jonathan T. Howe, Joseph L. Nellis, Washington, D.C., for appellants. Thomas A. Keller, III, Robert A. Brunig, O’Connor & Hannan, Minneapolis, Minn., for appellee; Raymond W. Conley, General Counsel, Des Moines, Iowa, of counsel. Before ROSS and JOHN R. GIBSON, Circuit Judges, and ROBERTS, District Judge. The Honorable Ross T. Roberts, United States District Judge for the Western District of Missouri, sitting by designation. JOHN R. GIBSON, Circuit Judge. MAD Minneapolis Audio Distributors and its manager, Gary Smoliak, appeal from the district court order denying Movie Systems’ motion for adjudication of civil contempt. Appellants principally contend that (1) the order modifies, rather than clarifies, a prior injunction by eliminating its conditions and making the injunction absolute; (2) the modification was improperly granted in the absence of changed circumstances and without an evidentiary hearing; and (3) the modified injunction violates the specificity requirements of Fed.R.Civ.P. 65(d). We affirm the order of the district court. Appellee Movie Systems, Inc., a licensee of Home Box Office (HBO), has the exclusive right to distribute HBO’s television entertainment service to paying subscribers in the metropolitan Minneapolis-St. Paul area. To receive the HBO signal, subscribers are provided with special antennas and down-converters to connect to their television sets. In March 1982, however, appellants MAD and Gary Smoliak and others advertised and sold microwave antenna systems that enabled homeowners to intercept Movie Systems’ HBO programming. On April 28, 1982, Movie Systems commenced an action in the district court, alleging that MAD, Smoliak, seven other dealers and their managers had violated 47 U.S.C. § 605, 47 C.F.R. § 21.903,18 U.S.C. § 2511, and Minn.Stat. § 626A.01-.23, had engaged in unfair competition, and had been unjustly enriched by selling microwave antennas and down-converters. The defendants counterclaimed, alleging that Movie Systems had violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2, and section 3 of the Clayton Act, 15 U.S.C. § 14, by establishing and seeking to enforce illegal tie-in arrangements relative to the ownership of receiving antennas, and that Movie Systems had violated defendants’ constitutional rights and had engaged in defamatory conduct. On May 28, 1982, Movie Systems moved for a preliminary injunction. Movie Systems, MAD, and Smoliak submitted the matter to the court on affidavits. On June 11, 1982, the district court heard oral argument. Later that day the district court entered an order granting the motion. The court concluded that Movie Systems had met its burden of establishing the prerequisites for the issuance of a preliminary injunction, and found that it had demonstrated a likelihood that it will establish certain facts, including: gg. The designed and intended use of the microwave antennas sold by the above-named defendants is to receive [Movie Systems’] HBO programming. Although these microwave antennas have other limited uses besides receptions of HBO programming, the use for which Defendants were and are selling the equipment was not and is not for such uses. The June 11 order enjoined defendants from: (1) Interfering with, interrupting, intercepting, receiving, divulging or using programming transmitted by Plaintiff Movie Systems, Inc., without its authorization; (2) Assisting, aiding, abetting or conspiring with any other person to intercept, receive, divulge or use programming transmitted by Plaintiff Movie Systems, Inc., without its authorization; (3) Manufacturing, selling, installing, possessing, purchasing, distributing, leasing, marketing, furnishing, advertising or offering for sale or installation equipment, parts and components thereof, or plans to construct such equipment, if such equipment, parts or plans are capable of, or could be used in intercepting programming transmitted by Plaintiff Movie Systems, Inc., or assisting others in such activities, if: (a) He, she, it or they advertise or communicate, either orally or in- writing, that his, her, its or their product is capable of or could be used in the interception, reception or use of any programming transmitted by Plaintiff Movie Systems, Inc., or of Home Box Office programming; or (b) He, she, it or they know or have reason to believe that a purchaser, dis-tributee or lessee in acquiring the product from him, her, it or them, acquires it with the intent of intercepting, receiving or using programming transmitted by Plaintiff Movie Systems, Inc., or Home Box Office programming. On June 18, 1982, Movie Systems filed a motion for adjudication of civil contempt together with supporting affidavits. A hearing on the contempt motion was held on June 22, 1982, with defendants supplying the court with affidavits in opposition. That same day, the district court issued an order denying the motion, stating: After consideration of the arguments of counsel at the hearing this morning as well as their written submissions to the record, the Court believes that the difficulties that have led to plaintiffs motion for an adjudication of civil contempt can best be resolved by a statement of clarification on the correct interpretation of the Court’s preliminary injunction. Among other things, the preliminary injunction orders defendants to refrain from sales of the electronic devices in question if they “know or have reason to believe” that the person acquiring the product intends to use it for receiving plaintiff’s programming. The affidavits on file demonstrate that there has been extensive advertising as well as news media coverage of the capabilities of the equipment supplied by defendants. Also, the Court has found that “[although these microwave antennas have other limited used [sic] besides reception of HBO programming, the use which Defendants were and are selling the equipment was not and is not for such uses.” It is apparent that defendants should “know” or at least “have reason to believe” (emphasis added) that a person acquiring the equipment from them has the intent of receiving plaintiff’s programming. Thus, the preliminary injunction prohibits all sales by defendants of equipment having this capability. Similar analysis would apply to the other activities that are prohibited by the preliminary injunction. This appeal from the June 22 order followed. I. Jurisdiction Movie Systems argues that this court lacks jurisdiction to consider the appeal directed against the June 22 order of the district court, which by its terms was a clarification of the preliminary injunction, and not an order granting, continuing, or modifying an injunction within the meaning of 28 U.S.C. § 1292(a)(1). The preliminary injunction of June 11, 1982 prohibited sales of equipment with the capability of intercepting programs transmitted by Movie Systems if MAD and the other defendants (1) advertised or communicated that the product was capable of or could be used in interception or reception of Movie Systems’ programming, or (2) knew or had reason to believe that a purchaser was acquiring the product with the intent of intercepting or receiving Movie Systems’ programming. The June 22 order referred to the finding in the June 11 order that while the microwave antennas had other limited uses besides reception of Movie Systems’ programming, MAD and the other defendants were not selling such equipment for such uses. Based on this finding and the affidavits on file, the district court concluded that the defendants should know or at least have reason to believe that a person purchasing the equipment has the intent of receiving Movie Systems’ programming. The court then ordered the prohibition of all sales by defendants of equipment having this capability. We think it evident that the June 22 order expands and modifies the June 11 preliminary injunction by eliminating its two stated conditions and by making the prohibition on sales absolute. This would bring the June 22, 1982 order within the plain language of 28 U.S.C. § 1292(a)(1) as it modifies the preliminary injunction. It is also abundantly clear that the June 22, 1982 order continues enforcement of the injunction of June 11, 1982 and in this additional respect falls within the plain language of 28 U.S.C. § 1292(a)(1). See Sperry Corp. v. City of Minneapolis, 680 F.2d 1234, 1237 (8th Cir.1982). Movie Systems argues that there was not a motion to modify the preliminary injunction before the court, and thus the June 22 order could not properly be characterized as denial of a motion to modify an injunction to bring it within the language of the statute. The district court, however, found that the motion for contempt could best be dealt with by issuing the order it termed a clarification. We do not believe that the action of the district court was unresponsive to the relief sought by Movie Systems, and we reject its arguments that the June 22 order was not a modification of the earlier preliminary injunction. II. The June 22 Order A. Relying on United States v. Swift, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932) and Humble Oil & Refining Co. v. American Oil Co., 405 F.2d 803 (8th Cir.), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969), MAD contends that the modification of the preliminary injunction required a strong showing of new conditions and circumstances making the original injunction oppressive, and that the evidence before the district court was insufficient to justify the modification. The cases cited, however, deal specifically with the modification of a final injunctive decree, not with a preliminary injunction as involved in this case. In modifying a preliminary injunction, a district court is not bound by a strict standard of changed circumstances but is authorized to make any changes in the injunction that are equitable in light of subsequent changes in the facts or the law, or for any other good reason. See generally 7 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 65.07 (2d ed. 1982); [Interim Binder] Federal Procedure, Lawyers Edition § 47.61 (1981). We regard the supporting affidavits that were filed with the motion for civil contempt on June 18 as providing a sufficiently good reason for modifying the June 11 injunction. One of the affidavits attached a newspaper article of an interview with MAD’s counsel, Marc Kurzman, with direct quotations that his clients would continue to sell the antennas, but without reference to HBO. The affidavits further revealed that MAD continued its sales efforts after the June 11 order. When one of MAD’s employees was approached by a Movie Systems’ employee who posed as a customer and who asked for an HBO antenna, the MAD employee said he could not sell him one then but encouraged the customer to come back another day and to state an innocuous reason. On another occasion, when a Movie Systems’ employee asked to purchase an HBO antenna, MAD responded by informing the customer of distance and line-of-sight requirements in relation to the microwave transmitter which is located atop the IDS Tower and which transmits Movie Systems’ HBO programming, and by referring the customer to another sales location for the purchase. This elaborate winking process is not contradicted by defendants’ affidavits. Rather, they uniformly establish the continued sale of antennas and down-converters in a studied effort to fall within the conditions of the June 11 order so as to minimize its effects. The affidavit of Marc Kurzman, counsel for MAD, attempted to correct certain statements appearing in the newspaper article in question, but did not dispute the continuing sales of equipment within the conditions set forth in the June 11 order. Kurzman’s affidavit made plain that he had discussed the June 11 order with his clients and that he instructed them that they could sell the antennas to “all but those people they knew, or should know, intended to use same to intercept HBO/MSI programming.” The remainder of defendants’ affidavits illustrate further the nature of the sales efforts that were made. Carl Hartell, manager of Communications Center in Minneapolis, admitted telling customers who did not request information about HBO that they would not get into trouble for using a multipurpose microwave antenna and instructed potential customers in its multiple uses; moreover, when asked what would happen if “the signal” were scrambled, the affiant responded “with words to the effect that it would cost them ‘beaucoup bucks’ to scramble a signal.” The affidavit of Peter Vitale, owner of Vitale TV & Stereo Co. in St. Paul, disclosed that he placed a sign in his store warning customers that he sold “multipurpose microwave antennas” rather than “HBO antennas” and that “[i]f the customer says he or she is going to use the antenna for HBO, we will not sell it to him.” Finally, in an interview attached to Gary Smoliak’s affidavit, an employee of MAD stated, “We were told that we could not sell the microwave antennas to any person who made it known that they were going to use it for the purpose of receiving HBO [but] if someone asked us for [a] microwave antenna, they could purchase one.” It is evident that this pattern of sales activities prompted the district court to reexamine its earlier findings in the June 11 order and to conclude that a clarification of the preliminary injunction — which we believe to be a modification of the injunction — was in order. The district court was justified in considering the post-June 11 activities of MAD, Smoliak, and the other defendants, and we find no abuse of discretion in the entry of the June 22 order. See Medtronic, Inc. v. Gibbons, 684 F.2d 565, 567 (8th Cir.1982). B. MAD also argues that the June 22 order improperly modifies an injunction without an evidentiary hearing because affidavits were presented contradicting the assumption of a sole use for the antennas. In so arguing, it is evident that the source of MAD’s complaint is the district court’s finding in paragraph gg of the June 11 order that the designed and intended use of defendants’ equipment was solely to receive Movie Systems’ HBO programming. The district court entered the June 11 order after considering the affidavits submitted by both parties, and a videotape offered by MAD. Counsel for MAD was twice asked and confirmed that he intended to submit his case by affidavit. Having willingly submitted affidavits which MAD knew or should have known to be in conflict at the time of the June 11 hearing — as all the affidavits were then on file — and having filed no appeal from the June 11 order, MAD cannot now be heard to complain about factual findings made at that time. With respect to the affidavits filed for and against the motion for civil contempt, discussed above, we do not understand MAD to argue that a material factual controversy exists. Although MAD did raise an issue of contrary affidavits during the contempt hearing, it has failed to follow up and urge any conflict in these affidavits on appeal. On the issue of continuing sales activities, which is the limited issue before us, we do not find these affidavits contradictory so as to require an evidentiary hearing. We have earlier said: By its nature, an application for a preliminary injunction often requires an expeditious hearing and decision. In order to overcome the problems that would be created in attempting to gather the necessary witnesses, it has often been held that affidavits may be received at a hearing on a motion for a preliminary injunction. Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281, 1286-87 (8th Cir.1974). Accordingly, we find no impropriety in the district court’s reliance on these affidavits. C. MAD’s further argument that the June 22, 1982 order lacks specificity is without merit. The order prohibits “all sales by defendants of equipment having [the] capability” of receiving HBO programming, and thus gives explicit notice of precisely what conduct is forbidden. That is all that is required. See Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661 (1974) (per curiam). We have carefully reviewed MAD’s remaining arguments, including the applicability of James River Flood Control Association v. Watt, 680 F.2d 543 (8th Cir.1982) (per curiam), to the modification of a preliminary injunction, and find them all to be without merit. Other issues raised for the first time at oral arguments will not be considered. III. Conclusion A recitation of the procedural history of this case with the preliminary injunction of June 11, the order of June 22 modifying its scope, and the hearing of June 25 to stay enforcement of the injunction pending appeal, provides an example of how extended procedural maneuvers delay the ultimate decision of whether a permanent injunction should issue. We feel it appropriate that the district court schedule a hearing on the permanent injunction at the earliest possible time. The order of the district court is affirmed. . The Honorable Earl R. Larson, United States Senior District Judge for the District of Minnesota. . The other defendants were dismissed by orders entered July 15 and 20, 1982. . Movie Systems conceded as much at oral arguments when it stated, “[W]e were looking for a contempt hearing .... I think it’s fair to say ... [we] were all surprised to get a modification.” . Lawyer Cites Loophole for ‘HBO Antenna’ Sales, Minneapolis Star & Tribune, June 16, 1982, at 1C. . Moreover, at no time during the June 22 hearing did MAD ask to present testimony although it did refer to a hearing on its motion for judgment on the pleadings which was to be scheduled on the following Monday. The district court specifically referred to a conflict in the affidavits insofar as it related to contempt and suggested that testimony be taken because of the conflict. Movie Systems’ counsel commented upon witnesses being available in the courtroom, but MAD’s counsel made no such statements. When the parties appeared before the district court on June 25, 1982, the subjects of discussion were primarily the timeliness of Movie Systems’ response to MAD’s motion for judgment on the pleadings, and the requirements for issuing a stay pending appeal. Although counsel for MAD made brief reference to the court’s lack of opportunity to hear witnesses because of scheduling problems, this ignores the fact that he failed to make a timely request for an evidentiary hearing at either the June 11 or June 22 proceedings. The district court observed that the June 22 order was made to prevent the necessity of extended contempt hearings which might result in fines or imprisonment for defendants found in contempt. . In a supplemental letter to the court following oral arguments, counsel for MAD advised the court of additional case law which he argued prohibits the issuance of a preliminary injunction without an evidentiary hearing. Medeco Security Locks, Inc. v. Swiderek, 680 F.2d 37, 38 (7th Cir.1981) (per curiam); Forts v. Ward, 566 F.2d 849, 851 (2d Cir.1977); Marshall Durbin Farms, Inc. v. National Farmers Org., Inc., 446 F.2d 353, 356 (5th Cir.1971); Consolidated Coal Co. v. Disabled Miners of S.W. Va., 442 F.2d 1261, 1269-70 (4th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 (1971); Detroit & Toledo Shore Line R.R. v. Brotherhood of Locomotive Firemen & Enginemen, 357 F.2d 152, 153-54 (6th Cir.1966); Sims v. Greene, 161 F.2d 87, 88 (3d Cir.1947). We have carefully reviewed these cases from other circuits and do not find them to be persuasive under the facts presented here. 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_appbus	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Wayne Eugene DUMOND, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee. No. 90-1034. United States Court of Appeals, Eighth Circuit. Submitted April 12, 1990. Decided Aug. 9, 1990. Rehearing and Rehearing En Banc Denied Oct. 5, 1990. John Wesley Hall, Jr., Little Rock, Ark., for appellant. Theodore Holder, Little Rock, Ark., for appellee. Before MAGILL, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge. BEAM, Circuit Judge. Wayne Eugene Dumond appeals a United States Magistrate’s dismissal of his habeas corpus petition, brought under 28 U.S.C. § 2254 (1988). In 1985, Dumond was convicted by an Arkansas jury of kidnapping and raping a seventeen-year-old high school girl, and sentenced to eonsecu-tive terms of life imprisonment and twenty years. The Arkansas Supreme Court affirmed Dumond’s conviction, Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (Ark.1986) (Dumond I), and denied his application for post-conviction relief. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (Ark.1988) (Dumond II). Dumond filed a petition in district court seeking habeas corpus relief, which relief the court denied. Du-mond filed his first appeal from the district court’s denial of his petition, and we reversed and remanded for a further hearing. We based this remand on newly discovered scientific evidence involving genetic testing. Dumond v. Lockhart, 885 F.2d 419 (8th Cir.1989). Following a hearing before the magistrate in which the victim testified about facts relevant to the results of the genetic testing, the magistrate held that Dumond “failed to present sufficient evidence to substantiate his newly discovered evidence claim” and dismissed Dumond’s petition. Dumond v. Lockhart, No. PB-C-88-631, slip op. at 4 (E.D.Ark. Dec. 15, 1989). We affirm. On September 11, 1984, Ashley Stevens was abducted from her home in Forrest City, Arkansas. A man entered Stevens’s home and forced her at gunpoint to follow him. The two drove in her automobile to a secluded area. The man forced Stevens to remove her jeans and underpants and he positioned them beneath her. Stevens testified that the rapist then forced her to engage in vaginal intercourse. The assailant used a prophylactic, but he did not ejaculate. The rapist withdrew from Stevens, pulled off the prophylactic, and forced her to perform oral sex. Stevens testified that the rapist ejaculated in her mouth but she spit it out on the ground. The assailant again forced Stevens to engage in vaginal intercourse but he purportedly did not ejaculate. Thus, Stevens testified that the rapist ejaculated only during oral sex. As indicated, Dumond was convicted of kidnapping and raping Stevens. After his appeal was denied by the Arkansas Supreme Court in Dumond I, Dumond obtained new counsel and submitted Stevens’s clothing to Dr. Moses Schanfield, an expert in genetic testing. Dr. Schanfield conducted an immunoglobulin allotype test on semen located on Stevens’s pant leg. Dr. Schanfield concluded that if the semen was “pure” and not mixed with vaginal fluids, there was a greater than ninety-nine percent probability that Du-mond was not the rapist because the semen lacked a genetic marker which Dumond possesses. Thus, if the rapist ejaculated only during oral sex, as Stevens testified, the semen on the pant leg was “pure” because saliva does not alter the immuno-globulin allotype test. If vaginal fluids were mixed with the semen, however, Dr. Schanfield reported that the results would be inconclusive. In Dumond II, the Arkansas Supreme Court denied Dumond’s petition for post-conviction relief under Ark.R.Crim.P. 37.1. Dumond asserted that because of the newly discovered evidence of this genetic test, due process dictated that he was entitled to a new trial. The court found that Du-mond’s claim regarding the newly discovered evidence was a direct, rather than a collateral attack on the judgment. Accordingly, Dumond’s claim was not within the purview of Rule 37.1. Dumond II, 743 S.W.2d at 782. In his writ of habeas corpus petition to the federal district court, Dumond presented his newly discovered evidence claim and attempted to compel Stevens’s testimony at the habeas hearing. As stated, Stevens had testified at trial that the rapist ejaculated only during oral sex. Accordingly, Dumond asserted that the semen was not mixed with vaginal fluids and, thus, was “pure” semen. Therefore, Dumond argued, he could not be the rapist because the semen lacked his genetic marker. The United States Magistrate quashed Du-mond’s subpoena and found that the record did not support Dumond’s assertion that the semen on Stevens’s pant leg was “pure” semen. Dr. Schanfield had tested Stevens’s jeans and underclothing and had found large amounts of semen, some of which was deposited vaginally. Thus, there was no strong evidence that the semen on the pant leg was “pure.” As indicated, pursuant to Dumond’s first appeal, we reversed and remanded for a further hearing based on purported inconsistencies in the evidence concerning the location and the number of ejaculations. We stated that relief could be granted to Dumond only if his newly discovered evidence “would probably produce an acquittal on retrial.” Dumond, 885 F.2d at 421 (quoting Mastrian v. McManus, 554 F.2d 813, 823 (8th Cir.) (citations omitted), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977)). Without offering Du-mond the opportunity to question Stevens concerning the specific details of the location and the number of ejaculations, we believed that we were incapable of determining whether the evidence probably would produce an acquittal. On December 13, 1989, Stevens testified at the hearing on remand. Stevens offered the same facts concerning the rapist’s actions as she had testified to at trial, and she stated that she did not know how semen got on her pant leg. See Hearing Transcript at 11. In addition, Stevens testified that she could not explain why the amount of semen on her clothing was equal to approximately three ejaculations when she could remember her assailant ejaculating only once. The magistrate found that Stevens’s testimony did not aid Dumond because her testimony actually tended to cast further doubt on the theory that the semen on the pant leg was “pure” semen. Stevens stated that after her assailant ejaculated during oral sex, she turned her head and spit out the ejaculate onto the grass by her head. This ejaculate was the only possible source of “pure” semen. Stevens also testified that her jeans were underneath her and not by her head. Thus, the magistrate stated that it was “highly unlikely that the oral ejaculate would have come in contact with the pants.” Dumond, No. PB-C-88-631, slip op. at 2. Accordingly, the magistrate concluded that without proof that the semen on the pant leg was “pure,” the genetic testing and Dr. Schanfield’s opinion concerning whether Dumond was the assailant were inconclusive. Further, the magistrate determined that Dumond was actually raising an insufficiency of the evidence claim because he argued that Stevens’s confusion on the location and number of ejaculations compelled a total rejection of the evidence identifying him as the rapist. The magistrate, however, determined that Stevens’s identification testimony was very strong and there was sufficient evidence on which the jury could base its guilty verdict. The magistrate dismissed Dumond’s petition. As we previously stated, the standard in this case is whether the newly discovered evidence “would probably produce an acquittal on retrial.” Dumond, 885 F.2d at 421. As earlier indicated, at the hearing on remand, Stevens responded to questions concerning her rapist’s ejaculations. Even with her testimony, Dumond, who had the burden of proof, was not able to establish that the semen was “pure.” After examining Stevens’s testimony at the hearing on remand and the strong evidence against Dumond which was presented at trial, we hold that the newly discovered evidence would not “probably produce an acquittal on retrial.” Id. Thus, we affirm the magistrate’s denial of Dumond’s petition for writ of habeas corpus. . The Honorable H. David Young, United States Magistrate, United States District Court for the Eastern District of Arkansas. . As this court in Dumond, 885 F.2d at 420 n. 1, explained: Immunoglobulins are antibody molecules which are found in the blood and other body fluids and which carry genetic markers known as allotypes. A genetic marker is simply an inherited trait. Thus, the immunoglo-bulins are tested to detect the presence of genetic markers. For instance, if an individual is known to have a certain genetic marker and the allotyping test reveals that the marker is missing in the fluid being tested, then the fluid could not have come from that individual. . The parties consented to the United States Magistrate’s jurisdiction under 28 U.S.C. § 636(c)(1) (1988). 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_appel1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Antone TEIXEIRA, Glen A. Teixeira, and Mabel Jane Teixeira, individually and as Guardian ad Litem for Glen A. Tei-xeira, Appellants, v. GLOBE INDEMNITY COMPANY, Appellee. No. 19450. United States Court of Appeals Ninth Circuit. Aug. 6, 1965. See also D.C., 230 F.Supp. 444. Ambrose J. Rosehill, Honolulu, Hawaii, for appellants. Burnam H. Greeley, Robertson, Castle & Anthony, Honolulu, Hawaii, for appel-lee. Before BARNES, JERTBERG and MERRILL, Circuit Judges. JERTBERG, Circuit Judge. Before us is an appeal from a summary judgment in a diversity action entered in favor of Globe Indemnity Company, plaintiff in the District Court and appel-lee here, hereinafter called “Globe”, in a declaratory judgment action brought by Globe to determine the parties’ rights thereto under an automobile insurance policy issued to Antone Teixeira, one of the defendants below and one of the appellants here, hereinafter called “Insured.” The facts are undisputed. On January 5, 1961 Globe issued to insured a “Family Automobile Combination Policy” effective for one year. The policy provides that Globe will pay, up to the limits of the policy, all sums for which the Insured would become legally liable for bodily injury, including death, and for property damage for which the Insured would become legally liable, “arising out of the ownership, maintenance or use of the owned automobile or any non-owned automobile”; that Globe will pay, up to the limits of the policy, all medical expenses of persons injured while occupying either the owned automobile or a non-owned automobile, and Globe will defend any actions seeking damages payable under the terms of the policy. The policy lists a 1957 Packard and a 1942 Ford Jeep under the heading “Description of Owned Automobile or Trailer” and recites that the total number of private passenger, farm and utility automobiles owned on the effective date of the policy by the Insured was “Two”. The policy defines: (1) An owned automobile as “a private passenger, farm or utility automobile or trailer owned by the named Insured, and includes a temporary substitute automobile;” (2) A non-owned automobile as “an automobile or trailer riot owned by or furnished for the regular use of either the named Insured or any relative, other than a temporary substitute automobile;” and (3) A temporary substitute automobile as “any automobile or trailer not owned by the named Insured while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.” The policy provides that: “Persons insured” means ' (a) with respect to the owned automobile, 1) the named Insured and any resident of the same household; 2) any other person using such automobile, provided the actual use thereof is with the permission of the named Insured; (b) with respect to non-owned automobile, 1) the named Insured; 2) any relative, but only with respect to a private passenger automobile or trailer, provided the actual use thereof is with the permission of the owner. Under “Definitions”, “Named Insured” means the named insured in the policy and also includes the spouse, if a resident of the same household. “Relative” means a relative of the named insured who is a resident of the same household. On November 3, 1961, Glen Albert Teixeira, one of the defendants and appellants, a minor stepson of the Insured and a minor son of his wife, Mabel Jane Teixeira, also one of the defendants and appellants, was driving a certain 1960 Corvair automobile and an accident occurred resulting in injuries to certain persons and in the death of another person. In April 1961 one William Sylva, unrelated to the Teixeiras, came to live with them and brought with him the Corvair automobile which was later involved in the accident, and which, at the time of the accident, was being driven by the minor son above named. Sylva had purchased the Corvair automobile on a time payment plan from General Motors Acceptance Corporation and was at all times here relevant the registered owner of the same. In June 1961 Sylva left Hawaii to work on board ship and had not been seen or heard from by any member of the Teixeira family up to the time of the hearing in the District Court. On Sylva’s departure from Hawaii, the Corvair was left with Mrs. Teixeira for the use of all members of the Teixeira family. From the time Sylva left Hawaii until the date of the accident it was used daily by Mabel Jane Teixeira, her son Glen, and her daughter Judy, and once or twice by the named Insured. Mrs. Teixeira had discussed with Sylva the possible purchase by her of the Cor-vair but had not reached any agreement with him as to such purchase. Her general plan was to purchase the Corvair if Sylva did not return within a year and if she sold some real property which she owned. After Sylva’s departure, Mrs. Teixeira made some monthly payments on the car but made no payments to Sylva and made to effort to communicate with him about the car. On one occasion Mrs. Teixeira inquired of General Motors Acceptance Corporation about having the registration of the Corvair transferred to her and was informed Sylva’s signature would be required. No other effort was made by her to procure transfer to her of the registration of the Corvair. The District Court held on the undisputed facts that the Corvair was neither an “owned” automobile, nor an “unowned” automobile not furnished for regular use of the appellants, and entered judgment for Globe. On this appeal appellants contend that the District Court erred: 1. In holding that Mrs. Teixeira was not the “owner” of the Corvair automobile at the time of the accident, within the meaning of the insurance policy; 2. In holding that the Corvair automobile was excluded from insurance coverage because it was a non-owned automobile furnished for appellant’s regular use; 3. In granting a summary judgment on the ground that there existed no genuine issue as to a material fact; and 4. In denying the right to trial by jury. On oral argument before us, counsel for the appellant conceded. that he had waived, in the District Court, the right of trial by jury, and withdrew the specification of error relating to the same. We have carefully examined the record in this case and are in complete agreement with the District Court that there exists no genuine issue as to any material •fact in the case. We first consider appellants’ contention that the District Court erred “that Mrs. Teixeira was not the ‘owner’ of the Cor-vair automobile at the time of the accident within the meaning of the insurance policy.” As above noted, Globe is obligated under the policy to pay, on behalf of the insured, all sums up to policy limits for which the insured shall become legally liable to pay as damages for bodily injury or death sustained by any person arising out of the “ownership, maintenance or use of the owned automobile, or any non-owned automobile,” and to defend any suit seeking such damages which are payable under the terms of the policy. Appellants contend that the Corvair automobile was an automobile owned by Mrs. Teixeira within the meaning of the policy. Such contention is founded mainly upon the definition of the word “owner” contained in Section 160-1 Part I, Chapter 160 of the Revised Laws of Hawaii, 1955, dealing with Motor Vehicles. This section in pertinent part provides: “PART I. REGISTRATION OF VEHICLES “§ 160-1. Definitions. As used in this part: «* * * “ ‘Owner’ means a person having the lawful use or control or the right • to the use or control of a motor vehicle under a lease or otherwise for a period of ten or more successive days; “ ‘Legal owner’ means a person who holds the legal title to a motor vehicle or a mortgage thereon; “ * * * » It is argued that since Mrs. Teixeira had the lawful use or control or the right to the use or control of the Corvair automobile under a lease or otherwise for a period of ten or more successive days, she was the owner thereof under the statutory definition above quoted, and that the statutory definition controls in construing the meaning of the words “owned automobile” appearing in the policy. While it might be conceded that Mrs. Teixeira was the owner of said automobile within the statutory definition above quoted for purposes of the application of the Motor Vehicle Act of which the definition is a part, we are unable to agree that the statutory definition of “owner” fixes the meaning of the words “owned automobile” appearing in the policy. An insurance policy like any other contract is subject to certain rules of construction. The definition of an “owned automobile” appearing in the policy defines the same in pertinent part as: “a private passenger, * * * automobile * * * owned by the named insured, * * It appears to be well-settled that words or terms in an insurance policy, like the words or terms used in any other contract, are to be construed according to their plain, ordinary and accepted sense in the common speech of man unless it appears from the policy that a different meaning is intended. Reliance Insurance Company v. Jones, 296 F.2d 71, 94 A.L.R.2d 217 (10th Cir. 1961); Yoshida v. Liberty Mutual Insurance Co., 240 F.2d 824 (9th Cir. 1957); Oil Base, Inc. v. Transport Indemnity Co., 143 Cal. App.2d 453, 299 P.2d 952 (1956). In Oil Base, Inc., supra, the court held that the word “owner” as applied to motor vehicles is commonly understood to designate the person in whom title is vested either as a legal owner or as a registered owner. In Yoshida supra, it was held that the common understanding of the words “owner” and “own” with respect to automotive vehicles includes the person entitled to possession of the vehicle, as the purchaser under a conditional sale contract. We are aware of no decision of a reviewing court which has extended the usual and ordinary meaning of the definition of the words “owned automobile” which appear in the insurance policy in the instant case to include such a tenuous relationship as existed between Mrs. Teixeira and the Corvair automobile. Such extension would bring within the protection of the policy unlimited risks arising from the use by, or with the consent, of, the insured of motor vehicles belonging to others temporarily left in the care or custody of the insured and for which protection the insurance eom-any would receive no premiums. To construe the policy in accordance with the appellants’ contention would, in our view, do violence to the proper construction of the policy and would mean the imposition by this court of a contract into which the contracting parties never entered. We are reinforced in the views expressed above by the fact that the District Judge long familiar with the law of Hawaii expressed similar views in reaching his decision in favor of the appellee. The District Court did not err in holding that Mrs. Teixeira was not the “owner” of the Corvair automobile at the time of the accident within the meaning of the insurance policy. Finally, we consider appellants’ contention that the District Court erred in holding that the Corvair automobile was excluded from insurance coverage because it was a non-owned automobile furnished for appellants’ regular use. The insurance policy affords coverage for liability arising out of the use of “non-owned” automobiles “not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile ;”. It is undisputed that the Corvair automobile was regularly used by the Teixeira family on a daily basis from the time of Sylva’s departure until the time of the accident. Appellants contend that the word “not” in the above-quoted provision of the policy applies only to the word “owned” therein, and not to the words “or furnished for the regular use of either the named insured or any relative”. It is appellants’ position that the provision in the policy in question should be construed as though the policy defined a “non-owned” automobile as: “(a) an automobile or trailer not owned by the named insured or any relative; or “(b) an automobile or trailer furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile.” If the definition be so interpreted, appellants contend that the policy covers said Corvair automobile because it is not owned by the insured or any relative, and was furnished for the regular use of either the insured or any relative, and it was other than a temporary substitute automobile. It is our view that such construction or interpretation does violence to the meaning of the provision of the policy and the plain intent of the parties. The policy extends coverage to a private passenger automobile owned by the named insured and includes a temporary substitute automobile. A temporary substitute automobile is one not owned by the named insured while temporarily used as a substitute for the owned automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction. Thus the policy evidences an intent not to grant unlimited coverage for a non-owned automobile unless it be a temporary substitute automobile. If the policy extends coverage to a non-owned automobile furnished for the regular use of the named insured or any relative, other than a temporary substitute automobile, the effect would be to render meaningless that part of the definition of “non-owned” automobiles reading: “or furnished for the regular use of either the named insured or other relative, other than a temporary substitute automobile” since all automobiles coming within its purview would already be included in that part of the definition of “non-owned” automobile which reads: “An automobile not owned by the named insured or any relative”, as well as rendering meaningless the “temporary substitute automobile” provision since a non-owned automobile under the non-owned automobile definition would extend coverage to automobiles falling in such classification. The District Court did not err in holding that the Corvair .automobile was excluded from insurance coverage because it was a non-owned automobile furnished for appellants’ regular use. The judgment of the District Court is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_applfrom	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). ABACOA RADIO CORPORATION, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee. No. 19627. United States Court of Appeals District of Columbia Circuit. Argued Jan. 27, 1966. Decided Feb. 17, 1966. Mr. Joseph F. Hennessey, Washington, D. C., with whom Mr. Robert M. Booth, Jr., Washington, D. C., was on the brief, for appellant. Mr. Joseph A. Marino, Counsel, F.C.C., with whom Messrs. Henry Geller, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, and Mrs. Lenore G. Ehrig, Counsel, F.C.C., were on the brief, for appel-lee. Before Wilbur K. Miller, Senior Circuit Judge, and Fahy and Leventhal, Circuit Judges. PER CURIAM: This appeal is from a Decision and Order of the Federal Communications Commission denying appellant’s application to increase the power of its radio station WMIA in Puerto Rico. The principal theory advanced for reversal is that since the Commission rested its decision, under 73.35(a) of the Commission’s Rules, upon applicant’s ownership, operation or control of three other stations serving substantially the same area, if one of the three stations is not under such control reversal must follow. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L. Ed. 626. It is contended that one of the three stations, namely, WISO, was in fact not in such common control because appellant’s principals owned only 49.7% of the stock of the licensee of WISO, and only two of appellant’s three principals, the two being brothers, are among the four directors of WISO. They are also officers of the corporation. The Commission refused to review the decision of the Review Board adverse to appellant. Before the Hearing Examiner and the Review Board appellant raised no objection to the finding of ownership, operation or control of WISO. The finding under Section 73.35(a) was not there contested, appellant contending that the public interest, convenience and necessity nevertheless would be served through the multiple ownership situation. Objection to the finding of control was first raised in appellant’s application for review by the Commission. In the circumstances of this case we think it was not open to appellant to insist that the Commission itself should reopen the issue of multiple ownership. The Commission rules provide for waiver of an objection by failing to file an exception in the manner provided by the rules. 47 CFR § 1.277(a). And the rules specifically provide that “[No] application for review will be granted if it relies on questions of fact or law upon which the designated authority has been afforded no opportunity to pass.” 47 CFR § 1.115(c). The designated authority in this case was the Review Board. The policy expressed in these rules, with which appellant failed to conform, leads us to affirm, especially in the absence of a clear showing of a well-founded contention that the Commission’s decision under Section 73.35(a) of its rules was erroneous. We have considered other questions raised and find in them no adequate basis for the court to decide, contrary to the Commission, that the application should have been granted. Affirmed. . Section 73.35 — Multiple Ownership No license for a standard broadcast station shall be granted to any party (including all parties under common control) if: (a) Such party directly or indirectly owns, operates or controls another standard broadcast station, a substantial portion of whose primary service area would receive primary service from the station in question, except upon a showing that public interest, convenience and necessity will be served through such multiple ownership situation; * * * Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_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. MOMAND v. PARAMOUNT PUBLIX CORPORATION et al. No. 1477. Circuit Court of Appeals, Tenth Circuit. Feb. 26, 1937. Rehearing Denied April 8, 1937. George S. Ryan (Frank S. Field, of Oklahoma City, Okl., on the brief), for appellant. Frank Wells, of Oklahoma City, Okl. (D. I. Johnston, of Oklahoma City, Okl., on the brief), for appellees except Regal Theatres, Inc. Malcolm W. McKenzie, of Oklahoma City, Okl. (J. H. Everest, of Oklahoma City, Old., on the brief), for appellee Regal Theatres, Inc. Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges. PHILLIPS, Circuit Judge. Appellant brought this action at law against appellees to recover treble damages under IS U.S.C.A. § IS, 38 Stat. 731. The record sets forth a purported motion interposed by appellees to strike certain portions of the amended petition and to require appellant tO' make certain portions thereof more definite and certain and purported rulings by the trial court on such motion. Neither the motion nor the rulings are incorporated in a bill of exceptions. The appeal is from the following order: “Now on the 9th day of July, the plaintiff having announced in open court that the order of February 3, 1936, entered in this cause would not be complied with, and no amended petition filed, it is the opinion that this cause should be dismissed. “It is therefore ordered, adjudged, and decreed, that this action be dismissed, and exceptions allowed the plaintiff.” The assignments of error are all predicated on the purported rulings on the motion. Motions to strike and motions to make more definite and certain and rulings thereon are not part of the record proper and may be brought upon the record only by a bill of exceptions duly authenticated and filed. Dietz v. Lymer (C.C.A.8) 61 F. 792, 794; Ghost v. United States (C.C.A.8) 168 F. 841; Chicago Great Western R. Co. v. Le Valley (C.C.A.8) 233 F. 384; Vance v. Chapman (C.C.A.8) 23 F.(2d) 914; Flanagan v. Benson (C.C.A.8) 37 F.(2d) 69. In Deitz v. Lymer, supra, the court said: “The defendant below has assigned for error the action of the circuit court in sustaining the several motions to make the answer more certain, and to strike out parts of the answer because they were too indefinite. * * * These assignments of error cannot be noticed in this court, for the reason that they relate to matters in which the action of the trial court was purely discretionary. * * * Moreover, motions of this character form no part of the record, unless they are made such by a bill of exceptions; and no bill of exceptions was signed or allowed, so far as the record shows, either when the orders in question were made or afterwards.” What is record proper and what may be brought upon the record only by a bill of exceptions is controlled by the statutes of the United States and, where they are silent, by the common law and the practice prevailing in the United States courts and not by the rules and practice in the state courts. Ghost v. U. S., supra; Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544, 553, 9 S.Ct. 150, 32 L.Ed. 508; St. Clair v. United States, 154 U.S. 134, 153, 14 S.Ct. 1002, 38 L.Ed. 936; Camp v. Gress, 250 U.S. 308, 318, 39 S.Ct. 478, 482, 63 L.Ed. 997. In Camp v. Gress, supra, the court said: “The Conformity Act [28 U.S.C.A. § 724] by its express terms refers only to proceedings in District (and formerly Circuit) Courts and has no application to appellate proceedings either in this court or in the Circuit Court of Appeals. Such proceedings are governed entirely by the acts of Congress, the common law, and the ancient English statutes.” The decisions of the state courts are therefore helpful only as they may reflect the practice under the statute of 13 Edward I, Chap. 31, the English statute providing for a bill of exceptions and broadening the scope of review on writ of error. The decisions of the state courts generally are to the effect that such motions may he brought upon the record only by bill of exceptions. It follows that the matters upon which error are assigned are not before us and may not be considered. Since it appears that the dismissal was because of failure to comply with the court’s order and was not based on matters going to the merits, the dismissal should have been without prejudice. Langley v. Hamilton, 127 Okl. 35, 259 P. 575. The order is reversed with instructions to vacate the order and enter an order dismissing the amended petition without prejudice. Each party will pay his own costs. Ewing v. Vernon County, 216 Mo. 681, 116 S.W. 518; Birmingham v. Warren (Mo.Sup.) 34 S.W.(2d) 115; Shuey v. Bunney, 4 Cal.App.(2d) 408, 40 P.(2d) 859; Arkansas Central R. Co. v. State, 72 Ark. 250, 79 S.W. 773; Town of Scott v. Artman, 237 Ill. 394, 86 N.E. 595; Pittsburgh, C., C. & St. L. R. Co. v. Indiana Horseshoe Co., 154 Ind. 322, 56 N.E. 766; Masoner v. Bell, 20 Okl. 618, 95 P. 239, 18 L.R.A.(N.S.) 106; Forbes v. Rogers, 143 Ala. 208, 38 So. 843; De Pedrorena v. Hotchkiss, 95 Cal. 636, 30 P. 787; Whitney v. Teichfuss, 11 Colo. 555, 10 P. 507; Mann v. Brown, 263 Ill. 394, 105 N.E. 328; Interstate Ry. Co. v. Missouri River & C. R. Co., 251 Mo. 707, 158 S.W. 349; Continental Casualty Co. v. Ogburn, 186 Ala. 396, 64 So. 619; Barber v. Mulford, 117 Cal. 356, 49 P. 206; Brink v. Posey, 11 Colo. 521, 10 P. 467. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". DICKMAN LUMBER COMPANY, a Washington corporation, Appellant, v. UNITED STATES of America, Appellee. No. 19923. United States Court of Appeals Ninth Circuit. Jan. 19, 1966. Rehearing Denied Feb. 28, 1966. Owen P. Hughes, Neal, Bonneville & Hughes, Tacoma, Wash., for appellant. Richard M. Roberts, Acting Asst. Gen., Meyer Rothwacks, Gilbert E. Andrews, Martin T. Goldblum, Attys., Dept, of Justice, Washington, D. C., William N. Goodwin, U. S. Atty., Tacoma, Wash., for ap-pellee. Before POPE, BARNES and HAM-LEY, Circuit Judges. POPE, Circuit Judge. Appellant corporation was assessed an accumulated earnings tax under the provisions of § 531 of the Internal Revenue Act of 1954. It paid the tax and then sued for refund in the court below. The tax assessed related to accumulated income for 1959. In that year such income amounted to $142,091.88. From this it paid dividends and other sums to stockholders amounting to $13,060.76. Upon the balance, $129,031.12, the tax of $38,676.98 was assessed. As of December ”31, 1959, appellant’s current assets and current liabilities (in round dollars) were as follows: Current Assets: Cash $ 331,852 Short Term Securities 850,000 Accounts Receivable 102,965 Log Inventories 463,186 TOTAL $1,748,003 Current Liabilities Accounts — Wages Payable 36,545 Accrued Income Tax 156,086 192,631 TOTAL All of the stock of the corporation (except for four qualifying shares in the names of employees) were owned by Ralph L. Diekman and his wife. Had the entire $129,000 mentioned been distributed in dividends in 1959, the Dickmans’ tax liability would have been increased by more than $87,000. The trial court held that appellant’s “accumulated earnings and profits were in excess of its reasonably anticipated needs as of the end of 1959 and that the said $129,031.12 was not so needed”; that plaintiff had failed to sustain its burden of proving that it did not have, as one of its purposes for accumulating earnings and profits, the avoidance of income taxes on its shareholders. Appellant contends that “[a] 11 undistributed earnings and surplus in excess of cash dividends paid in the sum of $12,000 at the end of 1959, were necessary for the four following reasonably anticipated needs of appellant’s business, and by reason thereof such earnings and surplus had not been accumulated for the purpose of avoiding surtax upon the shareholders of appellant: 1. Reserves required to meet competition, fluctuations and hazards of business. 2. Large amounts of available money required in supplying appellant’s mill with logs and timber. 3. Expenditures required for planned modernization and improvements of appellant’s mill. 4. Corporate funds required for payment of federal estate, state inheritance taxes and expenses of administration on retirement of a decedent shareholder’s stock under § 303 of the 1954 Code on the death of either or both of the two principal shareholders of appellant.” The findings of the court examine in detail and in depth each of these claimed reasons for the accumulations made. In each case the court found as a fact that these claims were without basis, that “the earnings and profits of the plaintiff, in addition to the said $129,031.12 were more than sufficient, in view of the liquidity of the corporation, to meet its anticipated needs.” The key question here is whether there was accumulation “beyond the reasonable needs of the business”. This, in our view, was a question of fact. Lundgren v. Freeman, 9 cir., 307 F.2d 104 And the trial court’s finding with respect thereto is supported by evidence. Since we hold that the findings of the trial court are not clearly erroneous, we must affirm the judgment. It is so ordered. . That section and related sections are as follows: “§ 531 [Title 26, U.S.C.A.] Imposition of accumulated earnings tax. In addition to other taxes imposed by this chapter, there is hereby imposed for each taxable year on the accumulated taxable income (as defined in section 535) of every corporation described in section 532, an accumulated earnings tax equal to the sum of — • “(1) 27% percent of the accumulated taxable income not in excess of $100,000 plus “(2) 38% percent of the accumulated taxable income in excess of $100,000.” “§ 533 [Title 26 U.S.C.A.] Evidence of purpose to avoid income tax. (a) Unreasonable accumulation determinative of purpose. — For purposes of section 532, the fact that the earnings and profits of a corporation are permitted to accumulate beyond the reasonable needs of the business shall be determinative of the purpose to avoid the income tax with respect to shareholders, unless the corporation by the preponderance of the evidence shall prove to the contrary.” “§ 537 [Title 26, U.S.O.A.] Reasonable needs of the business. “For purposes of this part, the term ‘reasonable needs of the business’ includes the reasonably anticipated needs of the business.” . Among the statements cited as authoritative in appellant’s brief is the following from Mertens, Law of Federal Income Taxation, § 39.32: “The question of reasonable accumulation is one of fact to be decided upon the basis of principles of sound business management.” Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_r_state	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 "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. UNITED STATES of America, Plaintiff-Appellee, v. Marion Charles BUCHANAN, Sr., Defendant-Appellant. No. 79-5671. United States Court of Appeals, Fifth Circuit. Unit A Dec. 22, 1980. Rehearings Denied Jan. 21,1981. Cecil M. Burglass, Jr., New Orleans, La., for defendant-appellant. D. H. Perkins, Jr., Brian P. Joffrion, William L. Goode, Asst. U. S. Attys., Shreveport, La., for plaintiff-appellee. Before COLEMAN, Chief Judge, and CHARLES CLARK and REAVLEY, Circuit Judges. CHARLES CLARK, Circuit Judge: Marion Charles Buchanan appeals his conviction on two counts of violations of 18 U.S.C. § 1341. He claims the mailings involved in each count were not for the purpose of executing the admitted scheme to defraud. We find that the mailing in Count I was not, but that the mailing in Count II was for this purpose, reverse his conviction on Count I, and affirm his conviction on Count II. The evidence, viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), was as follows. Count I: on or about January 31, 1978, the defendant, pursuant to a scheme to defraud his mortgagee, James E. Parkerson, tendered to Parkerson’s agent an uncollectible check to obtain forbearance of foreclosure on the mortgage. The agent, John Kelly, also a vice president of First National Bank of Lafayette (“the Lafayette Bank”), initially rejected the check because of an apparent discrepancy on the face of the check. Then, on February 10, the defendant returned to the Lafayette Bank and tendered to Kelly a corrected check drawn on an account in the defendant’s name at the Merchants and Shipowners Bank in Kingstown, St. Vincent, West Indies, which account in fact did not exist. The defendant asked for a letter saying that Kelly would not foreclose on the defendant’s property for sixty days, but Kelly refused. Three days later the Lafayette Bank mailed the check to the Whitney National Bank in New Orleans for collection. Although the foreclosure proceedings were stopped on several occasions, the presentation of the bad check did not result in forbearance of the foreclosure. Count II: on or about January 31, 1978, the defendant deposited into his corporate account at the Lafayette Bank three checks totaling $175,000, apparently certified and drawn on his personal account at the Merchants and Shipowners Bank in “Kingston [sic], St. Vincent, W.I.” Ms. Marcus, the teller with whom these checks were deposited, testified at trial that she gave the defendant immediate credit in his account for these checks, since they were certified and were to be treated, so she thought, as cash items. Ms. Marcus further testified, however, that the defendant did not ask for immediate credit and that he did not withdraw any money from his account at this time. One of these cheeks, in the amount of $50,000, was sent through ordinary processing channels to the Whitney National Bank. The check, dated January 27, 1978, was stamped on January 31, 1978, by the Whitney National Bank. Two or three days after the deposit, the Whitney National Bank called the Lafayette Bank and said the check was being sent back because it could not be handled through ordinary banking channels. After this phone call, the defendant’s account at the Lafayette Bank was frozen. On February 10, 1978, the defendant presented to a teller at the Lafayette Bank several checks drawn on his corporate account there, seeking to purchase money orders. He was not allowed to do so as his account had been frozen. On February 13, 1978, the Lafayette Bank mailed the $50,000 check back to the Whitney National Bank for collection. The next day, the defendant deposited with the Manufacturer’s Hanover Bank in New York City five checks totaling $159,200, drawn on his corporate account at the Lafayette Bank. On February 15, the Lafayette Bank received these checks through the Federal Reserve System, and returned them unpaid to the Hanover Bank with the notation “drawn against uncollected funds.” As to the events proved under Count I, Buchanan argues that when Kelly refused to give Buchanan the sixty-day letter he sought, the scheme failed and the subsequent mailing could not have been for the purpose of executing the scheme. We agree. Without speculating why the defendant let Kelly keep the worthless check when he was told it would not result in forbearance, we know Kelly refused to give the desired guarantee of forbearance of foreclosure. Since the scheme to obtain forbearance of foreclosure on the mortgage ended when Kelly refused to give the sixty-day letter, the mailing could not have been for the purpose of executing that scheme. United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603, 607 (1974). Like Maze in his case, the defendant here, once Kelly refused to give him the sixty-day letter, probably would have preferred that the check never be mailed. The scheme as planned contemplated mailing, but the scheme as unsuccessfully put into motion did not result in a mailing for the purpose of executing the scheme, as the statute requires. In connection with Count II, Buchanan strenuously argues that he was not given immediate credit for the checks deposited in late January, and that even if he was, the mailing could not further this successful scheme. Buchanan’s factual argument is contrary to the testimony of the teller involved, contrary to the implicit finding of the jury, and unsupported by any evidence. Buchanan was given immediate credit on January 31, 1978. Assuming this fact, he admits the scheme was successful but he claims the delay caused by the mailing could not further the scheme. This is clearly not so. The mailing would have delayed the discovery of the fraud and would have given Buchanan exactly what his schemes were designed to obtain: time to acquire funds to which he was not then entitled. The Government proved that the defendant had arranged with the Oaks Darby group, a collection of personages in New York under investigation for check kiting, for the bogus checks to take the following course: Buchanan would deposit the check with any bank, and it would be sent to the Merchants and Shipowners Bank in the West Indies. Since the check bore the notation “Payable Through Oxford Trading Establishment,” it would be sent to that entity and would end up in the pocket of Harry Neal Kelly, who controlled the Oxford Trading Establishment. Harry Kelly would then hold the check for a fee. This elaborate scheme would buy Buchanan as much as six months’ use of the credit obtained in the despositary bank. In light of this evidence, the jury could find that the mailing in Count II was clearly a part of the scheme to obtain time. See United States v. Knight, 607 F.2d 1172 (5th Cir. 1979), United States v. Toney, 605 F.2d 200 (5th Cir. 1979). The defendant argues in this court, as he did by a motion to dismiss in the court below, that Count II of the Indictment was defective on its face in that it failed to state the connection between the mailing and the scheme required by United States v. Maze. Maze’s requirement is just that the mailing be for the purpose of executing the scheme. The indictment meets this requirement. This argument is without merit. The defendant challenges the admission of the evidence regarding his contacts with the Oaks Darby group and of evidence that he had passed bogus checks on several prior occasions. This evidence was admitted under Rule 404(b), Fed.R.Evid., to show the full extent of the conspiracy and to prove intent. The defendant argues that since he never made intent an issue, the evidence was not admissible to prove intent. We disagree. Faced with a plea of not guilty, the prosecution is under no obligation to wait and see whether the defendant argues the non-existence of an element of crime before the prosecution presents evidence establishing that element. Buchanan sought to suppress evidence he contends was the fruit of an unlawful, warrantless search that took place on May 15, 1979. On April 15, Buchanan had failed to pay the monthly rent for the searched premises. The lease expired by its own terms five days after the non-payment of rent. On May 5, 1979, the landlord changed the locks on the doors of the premises. Since Buchanan had no further property interest in the premises once the lease had expired, and since he was not present at the premises when they were searched, he had no legitimate expectation of privacy in the premises and thus no standing to challenge the search. Rawlings v. Kentucky, — U.S. —, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The defendant next claims he should have been granted a mistrial. On the morning of August 15, 1979, the deputy clerk of the court, Cheryl Curtis, told the district judge that she had overheard a comment made out of court by a government witness to the effect that the defendant would be “burned” by the witness’ testimony. Ms. Curtis said the comments were made on August 14 in an elevator and that two jurors were in the elevator at the time. Judge Davis met with the attorneys in chambers and thoroughly investigated the matter. In open court, Judge Davis asked the jury if any of them had heard any remarks regarding the trial the previous day. Two jurors responded that they had overheard something. Judge Davis then questioned these jurors separately, in chambers, with only the court reporter and the judge’s law clerk present. Both jurors described the comment they overheard as “Tomorrow we are going to wrap up this case.” These were not the jurors on the elevator. Judge Davis then further investigated the matter and concluded that Ms. Curtis had been mistaken about the presence of jurors on the elevator. Apparently there was another government witness on the elevator who resembled a juror. Judge Davis then denied the defense motion for a mistrial. We recognize the seriousness of out-of-court communications between jurors and witnesses. Here, the trial judge after careful investigation determined that no such forbidden communication occurred. The procedure to be used in investigating such an alleged occurrence and the decision whether to grant a mistrial rest in the sound discretion of the trial court. United States v. Martinez, 604 F.2d 361, 364 (5th Cir. 1979); United States v. Burke, 496 F.2d 373, 377 (5th Cir. 1974); Tillman v. United States, 406 F.2d 930, 937-938 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). There was no abuse of discretion here. Finally, Buchanan challenges the admission of a hearsay statement allegedly made by Mr. Parkerson, which the Government introduced to rebut Mr. Parkerson’s deposition. The deposition, introduced by Buchanan, contained the statement that Parkerson had not been defrauded by Buchanan. That statement was irrelevant. The intended victim need not have been actually defrauded in order for a mail fraud violation to have occurred. United States v. Schaffer, 599 F.2d 678, 679 (5th Cir. 1979). Even if the statement was inadmissible [see Fed.R.Evid. 803(3)], we conclude it was harmless error beyond a reasonable doubt since it merely rebuts the contrary, irrelevant inference that could be drawn from Parkerson’s deposition, to wit, that he did not want Buchanan prosecuted. The judgment of conviction on Count I is reversed; the judgment of conviction on Count II is affirmed. The ease is remanded to the district court with directions to vacate the sentence on Count I. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. . Paragraph 2 of Count II of the indictment states in full: On or about February 13, 1978, in the Lafayette Division of the Western District of Louisiana, MARION CHARLES BUCHANAN, SR., for the purpose of executing the aforementioned scheme and artifice to defraud, and attempting to do so, knowingly caused to be placed in an authorized depository for mail matter, to be sent and delivered by the U. S. Postal System, from Lafayette, Louisiana, to New Orleans, Louisiana, a certified check drawn on MARION CHARLES BUCHANAN, SR.’S account, Number 291-123, Merchants and Shipowners Bank, Kingston [sic], St. Vincent, West Indies, in the amount of $50,000, under First National Bank of Lafayette collection letter, Number 22488, addressed to Whitney National Bank, New Orleans, Louisiana, all in violation of Title 18, United States Code, Section 1341 (18 U.S.C. 1341). . The statement was: “If he is a crook or a thief, he should be prosecuted and I will not stand in the way.” Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number. Answer:
songer_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". NATIONAL LABOR RELATIONS BOARD v. SWAN FASTENER CORP. No. 4648. United States Court of Appeals First Circuit. Heard Oct. 7, 1952. Decided Nov. 18, 1952. T. Lowery Whittaker, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Arnold Ordman, and William J. Avrutis, Attys., Washington, D. C., with him on the brief), for petitioner. Bernard A. Riemer, Boston, Mass. (Cohn, Riemer & Pollack, Boston, Mass., with him on the brief), for respondent. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. HARTIGAN, Circuit Judge. The National Labor Relations Board, pursuant to the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., has petitioned this court for enforcement of its order of July 24, 1951, under § 10(c) of the Act, against the respondent Swan Fastener Corporation. The respondent is a Massachusetts corporation and is engaged in the manufacture of zippers in Cambridge. It concedes that it is engaged in commerce within the meaning of the Act. A complaint and notice of hearing, dated June 29, 1950, was issued against the respondent, based on charges filed by Lodge 264 of District 38 of International Association of Machinists (IAM) that the respondent had engaged in certain unfair labor practices affecting commerce. The respondent filed its answer July 14, 1950 denying the alleged unfair labor practices and hearings were held before the trial examiner on 17. days in July and August, 1950. The trial examiner issued his intermediate report oh January-26, 1951, finding that respondent had engaged in certain unfair labor practices and recommended that it cease and desist therefrom and take certain affirmative action. The Board considered the intermediate report and the entire record and concluded that the respondent violated § 8(a) (1) and (3) of the Act and issued the remedial ojder now before us- which in substance ordered the respondent to cease and desist from certain unfair labor practices and to take certain affirmative action relative to offering eight employees, discriminatorily discharged, immediate and full reinstatement to their former o-r substantially equivalent positions without prejudice to their seniority or rights and privileges and to make said employees whole for any losses of pay they may have suffered by reason of the respondent’s discrimination against them. Testimony offered by the Board tends to show the following: During the noon hour on October 13, 1949, five employees of the respondent met with a representative of IAM near the respondent’s plant and signed and delivered to him membership applications in IAM. They received additional application cards and at the end of the day began a campaign to enroll fellow-workers. By the following week the IAM organizing group comprised eight employees, namely, Donald Blair, Stanley Doyle, Edward d’Entremont, Martin Moore, Frank Karavetsos, Lester Stevens, Stanley Barnette and Lois Blair, a sister of Donald. The men were employed as lacers and cutters and Lois as a machine operator. The organizing committee met regularly at lunch near the plant’s laundry section where they turned over application cards to either Moore or Blair and discussed employees to be solicited and the progress of the organizing campaign. On October 18 to 20 these noon meetings were observed by William Cravatts a foreman in the assembly section and son of the general manager, Robert Cravatts, and Irving Gilman, production manager. On October 19, an IAM representative went to the respondent’s office and introduced himself to William Cravatts and told him that he represented a majority of the employees and asked for a bargaining conference. William replied that his father Robert, the general manager, who usually handles such matters, was absent from the plant. On October 19 the respondent was further advised by the Board’s Regional Office that the IAM had filed a petition for certification as exclusive bargaining representative of the production and maintenance employees. After the respondent learned of the union activities, Robert Cravatts asked Keith Whitham, who supervised sections in the assembly department, if he had seen any employees distributing membership applications in the plant during working hours and asked him to inquire among the employees in order to find out how many signed up with the IAM. Whitham made inquiries among employees under him and when one of them hesitated to answer whether he had signed an IAM card, Whit-ham told him “He knew all about it already.” Whitham also warned employees it would be wiser not to take part in union activities because it might lead to trouble and respondent might move to New York if the IAM were successful. After the union’s request for a bargaining conference on October 19, Gilman arranged to see Doucette, Fossick and Kelly who were the lead men in the chain room during the plant’s three shifts and told them that he knew of the union’s organizing efforts and Gilman tried to find out from them which employees were behind the campaign. Gilman asked Kelly whether he signed an IAM card and was informed that he had. Gilman asked him how it would benefit him and said Kelly was “paying union dues for nothing” and accused him of starting the IAM campaign in the plant. Gilman asked the three men to inquire from the employees with whom they worked whether they had signed IAM cards and if so, why. Gilman told these three men the employees would not benefit even if the IAM were successful because in that event the plant would have to move to New York to save transportation costs. After Kelly returned to his work, foreman Arthur Quaregan discussed the IAM campaign with him and Kelly told Quaregan about the meeting in Gilman’s office and asked Quaregan why the company thought he had started the organizational campaign. Quaregan pointed out that Kelly had been connected with a union during previous employment and Quaregan also stated that Gilman inquired as to who had given Kelly the IAM application card which he had signed and Kelly named Martin Moore, a chain room lacer and member of the IAM organizing group. Quaregan said that the company did not want the union in its plant and left Kelly and walked toward the office and about an hour later Moore told Kelly that he (Moore) had got a layoff slip. At quitting time on the day Gilman talked to Doucette, Possick and Kelly, employees were told to remain in the plant for a meeting. Barnette and four other members of the IAM organizing committee, Blair, d’Entremont, Karavetsos and Stevens were among those who attended. William Cravatts told the assembled employees that they knew why they were at the meeting and that he knew all of them were in the union. He told the employees that the union could not do them any good because the respondent could not afford to give them any more paid holidays and vacation time and he added that if the IAM succeeded in organizing and should cause “trouble,” the respondent would have to move to New York. He stated further that all the union wanted was the employees’ “two bucks a month.” At this meeting Lillian Michelman, whom the Board found to be a supervisor in, the cutting department, warned the employees that if the IAM drive were successful the respondent could raise the production quota upon which employees’ compensation was based and that the respondent would stop all the privileges currently allowed the employees. When this meeting ended Herman Cravatts, brother of William, and also a supervisor in the assembly section, handed Barnette his pay envelope which contained a slip stating that he was being temporarily laid off due to a lull in business. Three days later, on October 24, at 3:30 p. m., during the change of shifts in the chain room, the respondent assembled the employees of that department to listen to Gilman. He told them that he knew union activity was going on and that he knew which employees were trying to organize the union. Gilman then asked whether they had any complaints about wages or other conditions of employment and advised them to take up such matters with Quaregan or himself. Lester Stevens, a lacer and one of the IAM organizing committee, reported to work the following morning but did not find his time card in the rack. He questioned Quaregan, about his card and Quaregan told him that the respondent was laying him off because of a lull in work. When leadman Kelly voiced his surprise to Quaregan at this dismissal of “a very good-worker” and asked “What's the story”, Quaregan replied that Stevens “is passing out cards.” At quitting time on the same day respondent laid off another IAM committeeman, Donald Blair, also because of a “lull in business.” The next day, the respondent, asserting that it was “low on work”, discharged Karavetsos, a member of the IAM organizing group. On November 4, Robert Cravatts called William Cravatts to his office and introduced him to several men. Robert told William that these men wanted to speak to the employees and instructed William to assemble them. The employees were informed that there was to .be a meeting at the time clock about 10 a. m. which they were free to attend if they wished. At the meeting William Cravatts introduced Ralph Roberts, an organizer for the International Ladies Garment Workers Union (ILGWU), who spoke to the employees. Roberts argued that the ILGWU was the proper union for the zipper industry. In response to a question as to what would happen to the employees who would not join this organization if' it should be successful in its campaign, Roberts answered! “they were out”. Neither William Cravatts nor any other supervisory employee present, repudiated this threat. Talks in favor of the ILGWU were also made by a representative of another zipper manufacturer and a shop steward of ILGWU. Membership application cards in ILGWU were then passed out and were signed by Quaregan, William Cravatts and by a number of employees and returned to- the ILGWU organizer. The respondent paid its employees for the time spent at the meeting. The inference drawn by the Board that the respondent sanctioned the ILGWU meeting seems reasonable in the circumstances. In International Association of Machinists, etc., v. National Labor Relations Board, 311 U.S. 72, 78, 61 S.Ct. 83, 88, 85 L.Ed. 50, the Supreme Court said: “ * * * Slight suggestions as to the employer’s choice between unions may have telling effect among men who know the consequences of incurring that employer’s strong displeasure. The freedom of activity permitted one group and the close surveillance given another may be more powerful support for the former than- campaign utterances.” On November 10, William Cravatts laid off Doyle and d’Entremont, members of the IAM organizing group. On November 15 Whitham received a circular which was being distributed to announce an IAM meeting outside the plant for the evening of November 16. On the 16th Whitham asked several of the men working under him whether they were going to attend and when two employees, Barnette and Perkins, said they intended to go, Whitham asked them to let him know what took place there. An employee namd Stover told Whitham that he did not think he would go to the meeting and! Whitham replied that it was entirely Stover’s choice but that the “higher-ups” would want to know what was going on. On the morning after the IAM meeting, Perkins told Whitham what had been said at the meeting and further informed him that none of the other employees of Whitham’s section had attended. Herman Cravatts went to the meeting hall and tried to attend the IAM meeting. He was seen by a number of respondent’s employees who were already present. The IAM representative told Herman he would have to leave the hall or be thrown out. Herman left but remained outside at the entrance for several minutes and while he was standing on the sidewalk several employees approached the hall and saw him there. While at the meeting Herman Cravatts greeted Lois Blair who worked under his supervision. On the day after the IAM meeting, Herman told Lois that her services were no longer needed due to a lull in business. The respondent contends that another reason for her lay off was that she talked too much while on the job and was not getting her work done. The respondent offered testimony to the effect that it did no.t coerce its employees by interrogation, surveillance or by other unlawful conduct in the exercise of their rights guaranteed in § 7 of the Act nor that it discriminatorily discharged the eight members of the organizing committee because of their union membership and activities. It attempted to justify the discharges of the said eight employees mainly because of its claim that there was a “lull in business” or for other adequate reason. The respondent argues that the testimony of the union’s witnesses was manufactured to suit, their case against the respondent. In National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 365, 85 L.Ed. 368, the Supreme Court said: “ * * * Congress entrusted the Board, not the courts, with the power to draw inferences from the facts. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 576, 82 L.Ed. 831; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 311, 84 L.Ed. 396. The Board, like other expert agencies dealing with specialized fields (see Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 764, 83 L.Ed. 1147; Swayne & Hoyt v. United States, 300 U.S. 297, 304, 57 S.Ct. 478, 481, 81 L.Ed. 659) has the function of appraising conflicting and circumstantial evidence, and' the weight and credibility of testimony.” See National Labor Relations Board v. Kobritz, 1 Cir., 1951, 193 F.2d 8. The respondent contends that the Board’s findings: (1) that the respondent by interrogation, threats of reprisal, surveillance, and other unlawful conduct interfered with, restrained and coerced its employees in violation of § 8(a) (1) of the Act, and (2) that respondent discriminatorily discharged eight members of the IAM organizing group' in violation of § 8(a) (3) are not supported by substantial evidence. We find no merit in the respondent’s contentions and conclude that the Board’s findings of violations of § 8(a) (1) and (3) of the Act are supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. A decree will be entered enforcing the order of the Board. 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_respond2_4_2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. A. W. LAFFERTY and Richard L. Merrick, Appellants, v. George M. HUMPHREY, Secretary of the Treasury, et al., and Benton County, Corvallis, Oregon, et al., Appellees. No. 13353. United States Court of Appeals District of Columbia Circuit. Argued Feb. 18, 1957. Decided June 13, 1957. Writ of Certiorari Denied Nov. 12, 1957. See 78 S.Ct. 118. Messrs. A. W. Lafferty, Portland, Or., Byron N. Scott, Washington, D. C., and Donald C. Walker, Portland, Or., of the bar of the Supreme Court of Oregon, pro hac vice, by special leave of Court, for appellants. Mr. Paul R. Connolly, for appellee Benton County, Corvallis, Oregon, and certain other appellees. Mr. Harold S. Harrison, Attorney, Department of Justice, with whom Mr. Roger P. Marquis, Attorney, Department of Justice, was on the brief, for appellee George M. Humphrey, Secretary of the Treasury, and certain other appellees. Before Edgerton, Chief Judge, and Prettyman and Wilbur K. Miller, Circuit Judges. PRETTYMAN, Circuit Judge. This is a suit for a class-action attorney fee. It is another step in a long controversy which began in acts of Congress in 1860-1870. The facts are recited in some detail in our opinion in Clackamas County, Or., v. McKay. They need not be repeated here. In our opinion and decision in that case we held that acts of Congress in 1916 and 1937 imposed upon the various executive officials involved a mandatory duty to distribute to the Oregon counties the money accumulated in the special fund designated “The Oregon and California land-grant fund”. We ordered a remand for proceedings in accordance with that view. That was on April 30, 1954. A petition for rehearing was filed, and on June 24, 1954, while the petition was pending, Congress passed an act which, inter alia, directed that the funds theretofore derived from the lands and placed in the special fund “shall be disposed of in accordance with the provisions of title II of the Act approved August 28, 1937 (50 Stat. 874) as hereby amended”. In the presentation to the Congress of the bill which became the act, it was made abundantly clear that the decision of this court had settled the question of the status of the disputed lands but that the court did not attempt to decide the question of jurisdiction for management purposes as between the Department of the Interior and the Department of Agriculture. The distribution of the funds depended upon the former question; if the lands were “O & C” lands the funds belonged in part to the counties, no matter what Department had management of them. The act did not purport to change the court’s decision. It effected exactly what the court ordered, distribution of the funds pursuant to the 1937 act, and it decided the dispute as to management, a matter concerning which the court had said nothing. The legislative history of the 1954 act clearly shows the intention behind it. Senator Cordon, who sponsored the bill, told the Senate: “Mr. President, the purpose of the bill is to determine legislatively a jurisdictional question which has existed between the Department of Agriculture and the Department of the Interior for many, many years. * * * -X- * -X- * * * “The question of the character and class of the lands reached the courts in 1925, in a suit brought by the Government against the railroad company for an accounting in connection with the revestment and the reciprocal obligation of the Government and the company. In that case the determination of the Court was that the 472,000 acres were revested O. & C. grant lands. “However, the Court did not attempt to make any determination with respect to the administration of the 472,000 acres in question. That issue was not properly before the Court. There is a series of decisions with respect to the legal status of the lands. The latest decision was rendered only a couple of weeks ago— on April 30, 1954 — in the United States Circuit Court of Appeals for the District of Columbia. All decisions have been uniform with respect to the law and its applicability to these lands. “However, there has remained the question of jurisdiction for management purposes. * * * * * * * * * “Because of the fact that there is a distribution of funds from the O. & C. Railroad lands to local governmental units much greater than the distribution to local units in the case of Forest Service lands, the question of the legal character of the 472,000 acres is of great importance to the people of Oregon. The courts have determined that question. * * “This bill meets the overall situation by providing that the 472,000 controverted acres are declared to be revested O. & C. lands. This is precisely what the Court declared them to be. **** “Thus, the bill, S. 2225, takes care of both the administrative question and the jurisdictional one as far as the 472,000 acres are concerned.” (Emphasis supplied.) When the bill reached the floor of the House the following colloquy occurred: “Mr. Wickersham. Mr. Speaker, reserving the right to object, and I make this reservation at the request of two of our former colleagues, I would like to ask the gentleman from Oregon [Mr. Ellsworth] a question. This measure is a followup and confirms a decision of the District of Columbia Circuit of the United States Court of Appeals on April 30, 1954, in which action A. W. Lafferty, a former Member of Congress, represented Clackamos [sic\ County, Oreg., and others and won the decision. Is this correct? “Mr. Ellsworth. That is correct. «•«•** “Mr. Wickersham. Is it a fact that this bill confirms the decision of the court of appeals which directed the payment of $7 million or $8 million to 18 Oregon counties, including Clackamos [sic] County, all of which 18 counties thereby benefiting by the action instituted by A. W. Lafferty, as attorney, and benefited from the said court decision? This is correct, is it not? “Mr. Ellsworth. That is correct.” On October 21, 1954, the petition for rehearing was denied in this court, and our mandate issued. We noted that as of that time no statement had been made that the Secretaries had distributed the funds. On February 17,1955, the Government applied to the Supreme Court for a writ of certiorari, saying that the Secretary of Agriculture had by that time, pursuant to the new act, transferred the funds to the Secretary of the Interior and he in turn had distributed to the counties the parts of the accumulated funds due them, retaining a substantial sum on account of the present proceeding. The Government officials now stand neutral in the matter. On April 18, 1955, the Supreme Court granted certiorari, vacated our judgment, and remanded the case with directions to dismiss as moot. Our present appellants, Lafferty and Merrick, are the lawyers who conducted the lawsuit above discussed. They filed an action for attorney fees, naming the Secretaries defendants, as stakeholders of the fund, and the Oregon counties as the debtor defendants. The defendant counties, with the exception of Clackamas County, moved for summary judgment on two grounds: (1) that these lawyers’ efforts to bring about a distribution of the funds had been unsuccessful and (2) that the lawyers had not been retained by movants. The District Court granted the motion. Two questions are before us. The first is whether the lawsuit conducted by these appellant lawyers resulted in benefit to the counties. To say that it did not result in such a benefit seems to us little more than a play on words. Many efforts had been made prior to 1954 to persuade Congress to settle the controversy specifically and to direct the payment of the funds to the counties. None had succeeded. As the Congressional Record shows, when the bill came before Congress in 1954 the members were told specifically and emphatically that this court had settled the legal character of the lands, and in the House they were told that the bill “confirms” the decision of this court. The act finally adopted directed payment pursuant to the 1937 statute, which is what this court had ordered. If we thought Congress intended to divest a court decree of effectiveness after it had been validly rendered by a court of competent jurisdiction, we would have a serious question as to the validity of the congressional act. But clearly Congress had no such intention. Quite the contrary, it accepted the court decision as settling the controversy as to the nature of the lands and went on from there to prescribe the future management. To say that the action was unsuccessful because pending certiorari the Government paid over the money which was the sole subject of the litigation, seems to us to be another play on words. A party does not nullify a court order by complying with it. Thus we are of clear opinion that the lawyers who conducted the litigation performed services which were of value and achieved substantial benefits for the counties. Upon the second point, that only Clackamas County engaged these lawyers, Sprague v. Ticonic Nat. Bank is dispositive. In the case at bar there was a definite, earmarked fund. The litigation resulted in a substantial benefit to all the counties. They all participated in the distribution. The complaint was brought by Clackamas County on behalf of itself and the other counties. It was said by the Government in its petition for certiorari in the Supreme Court in 1955 that the amendment of the 1937 act contained in the 1954 act resulted in “different payments to the counties under the 1954 Act than under the provisions of the 1937 Act.” The amendment may have resulted in different payments to the respective counties, but it in no way affected, even by a penny, the total amount payable to ■all the counties. The lawsuit was to determine whether the whole sum was payable to all the counties. What portion each county would get was not involved. The service rendered by these attorneys was in respect to the whole fund as payable to all of the counties. The formula for distribution among the several counties had nothing to do with their services. The judgment of the District Court will be reversed and the case remanded for the determination of the proper amounts of fees to be paid these appellant lawyers from the fund retained in the hands of the Government. Reversed and remanded. . 94 U.S.App.D.C. 108, 219 F.2d 479 (1954). . 39 Stat. 218. . 50 Stat. 874, 43 U.S.C.A. § 1181a et seq. . 68 Stat. 270, 43 U.S.C.A. § 1181& . 100 Cong.Rec. 6886 (1954). . 100 Cong.Rec. 7969 (1954). . 349 U.S. 909, 75 S.Ct 599, 99 L.Ed. 1244. . 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate 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_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Carmen GALARZA, Plaintiff, Appellant, v. Dr. Cecil ZAGURY, Defendant, Appellee. No. 82-1449. United States Court of Appeals, First Circuit. Argued Nov. 3, 1982. Decided March 17, 1983. Wilfredo A. Geigel, Santurce, P.R., for appellant. Angel R. De Corral Julia, San Juan, P.R., with whom Law Offices of Miranda, Cardenas, De Corral & Rodriguez Suris, San Juan, P.R., were on brief, for appellee. Before BOWNES, BROWN ** and BREYER, Circuit Judges. BAILEY BROWN, Senior Circuit Judge. The issue presented in this case iiivolves the proper interpretation of the medical malpractice statute of limitations of Puerto Rico. The district court granted a motion to dismiss this medical malpractice action on the ground that it was time-barred by this statute of limitations. After the dismissal, the plaintiff below brought this appeal. At the time the district court granted the motion, the following facts were not disputed by plaintiff-appellant, Ms. Carmen Ga-larza, and were before the district court. Ms. Galarza underwent a perianal fistu-lectomy performed by the appellee, Dr. Cecil Zagury, on November 29,1977, in Puerto Rico. During this surgery, Dr. Zagury lacerated and damaged her sphincter muscle. As a result, she suffered “continuous fecal incontinence” from the time of the operation until she underwent corrective surgery by another surgeon. For a number of months after the operation, Dr. Zagury continued to treat Ms. Galarza. She complained to him of her incontinence problem almost immediately, but he assured her that everything was normal and that healing would take some time. Nevertheless, she continued to complain to him. Ms. Galarza visited her gynecologist, Dr. Natalio Bayonet, for an examination during January 1978, about two months after the operation. He asked her about her problem, and she told him that she had been suffering from incontinence since the operation. Dr. Bayonet immediately called Dr. Zagury, and after the conversation, Dr. Bayonet sent her to see Dr. Zagury. She did so and Dr. Zagury told her not to see Dr. Bayonet again. On June 20, 1978, Dr. Zagury performed a second operation, apparently for the purpose of correcting the incontinence problem. But the problem continued, and in September 1978, Ms. Galarza visited Dr. Zagury for the last time and informed him that she was going to consult her doctors in New York. Beginning on October 12,1978, Ms. Galar-za received evaluation and treatment in New York City. She then found out for the first time that her incontinence was the result of negligence of Dr. Zagury in performing the operation when one of her New York doctors so informed her in February or March 1979. On July 31, 1979, Ms. Galarza filed this medical malpractice suit against Dr. Zagu-ry. The applicable statute that is before us for interpretation reads in relevant part: The action for alleged damages for malpractice shall commence, irrespective of any provisions in other acts, within one year from the date of the damage giving rise to the action occurred, or within one year from the time the damage was discovered or should have been discovered with due diligence. In no case may the action be instituted after two years from the date of the damage giving rise to the cause of action occurred. In those actions covered by this section in which it is shown that because of fraud, concealment or misrepresentation of facts the discovery of the damage was prevented within the period of two years, the prescription term shall be extended indefinitely. P.R.Laws Ann. tit. 26, § 4109 (Supp.1981). Pretermitting for the moment the meaning of “damage” as used in this statute of limitations, we conclude that the statute should be construed as follows: 1. If the damage was or should have been discovered by Ms. Galarza at the time it occurred, the claim would be barred one year from the time the damage occurred. 2. If the damage was not and should not have been discovered by Ms. Galarza at the time it occurred, but was discovered or should have been discovered within two years of the time it occurred, the claim would be barred one year after it was or should have been discovered provided that in any event the claim would be barred two years after the time it occurred. 3. If the damage was not discovered and should not have been discovered by Ms. Galarza, because of fraud, concealment or misrepresentation of facts, within two years of the time it occurred, then the claim is never barred. However we define “damage” for purposes of this limitations statute, the second paragraph of the statute quoted above could not be applicable here since Ms. Ga-larza filed her lawsuit, setting out her malpractice claim, within two years of the date of the surgery. Ms. Galarza contends that “damage” within the meaning of this malpractice limitations statute and in this context includes all of the following facts: (a) that incontinence followed the surgery plus (b) that the incontinence was caused by laceration of the sphincter muscle that occurred during the surgery plus (c) that Dr. Zagury was guilty of negligence in so lacerating the sphincter muscle. Ms. Galarza further contends that she neither knew nor should have known of the “damage,” as so defined, until she learned of Dr. Zagury’s negligence after she received evaluation and treatment in October 1978. Thus, Ms. Galarza contends, her claim is not barred since she filed this action on July 31,1979, within one year of the time she knew or should have known of Dr. Zagury’s negligence. Dr. Zagury contends, on the other hand, that “damage” within the meaning of this malpractice limitations statute and in this context includes only the following faet(s): (a) that incontinence followed the operation plus (at the most) (b) that the incontinence was caused by the laceration of the sphincter muscle that occurred during surgery. Dr. Zagury points out that, as is admitted, Ms. Galarza was aware of her incontinent condition shortly after the surgery. Dr. Zagury further contends that on June 9, 1978, Ms. Galarza received notice that her incontinence was caused by damage to the sphincter muscle that occurred during surgery, because on that date she received from Dr. Bayonet a certificate so stating, which she filed with the Social Security Administration and was granted benefits. Thus, Dr. Zagury contends, Ms. Galarza’s claim is barred since she filed the action on July 31, 1979, which is more than one year after she knew of her incontinence and after she knew or should have known that such was caused by laceration of her sphincter muscle that was done during the surgery. We conclude, for reasons hereinafter stated, that “damage” within the meaning of this limitations statute does not include the presence of negligence or malpractice. Rather, we believe that, as applied to this factual situation, Ms. Galarza can be said to have been damaged because of the incontinence that she suffered following the surgery and because such was caused by laceration of the sphincter muscle by Dr. Zagury during surgery. The problem presented here has been described in very general terms as follows: In determining the proper event which starts the period of limitation running against a malpractice action, the courts are confronted with two very basic, yet conflicting policies: on the one hand the policy of protecting a practitioner against the danger of stale lawsuits involving the dangers of missing witnesses and errors in memory in recollecting pertinent facts; on the other hand, the basic policy of protecting patients against the negligence of medical practitioners which often is difficult to discover within the statutory period of limitation. This conflict in basic policies has resulted in a conflict in the rulings of the courts which can be explained only partly by differences in the language of the pertinent statutes. It has been said that the test to determine when the statute of limitations begins to run against an action against a physician sounding in tort is whether the act causing the damages does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of the plaintiff. However, there is also a considerable amount of authority to the effect that the period of limitations does not commence to run until discovery of the injury by the patient. 61 Am.Jur.2d, Physicians, Surgeons, Etc. § 318 at 469 (citations omitted). We are not, however, presented with a question whether the statute began to run only after Ms. Galarza “discovered,” for the statute by its terms requires “discovery.” Our question is: what must Ms. Galarza have known or should have known to start the statute running, or, stated differently, what is damage within the meaning of the statute? Counsel have advised the court that there is no legislative history that would be helpful to the court in construing this statute, and counsel have not cited any cases from Puerto Rico that would throw light on this recently enacted statute. We believe that United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), provides helpful guidance in analyzing this case. There an action was brought against the United States by Kubrick, a veteran, following treatment in a Veterans Administration hospital. The government contended that the claim was barred by the limitations provision in the Federal Tort Claims Act, 28 U.S.C. § 2401(b), which requires that a claim be presented in writing to the appropriate federal agency “within two years after such claim accrues.” Kubrick contended that the claim was not time-barred because the statute did not begin to run until he knew or should have known that the government physicians were guilty of negligence in treating him. As stated there by the Court: The issue in this case is whether the claim “accrues” within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. 444 U.S. at 113, 100 S.Ct. at 354. The Court concluded that, under the aforesaid statute, the limitations period began to run when the plaintiff knew of the existence and the cause of his injury. In this connection, the Court said: We are unconvinced that for statute of limitations purposes a plaintiffs ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff. Id. at 122, 100 S.Ct. at 359. The Court then concluded: We thus cannot hold that Congress intended that “accrual” of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised or the medical community may be divided on the crucial issue of negligence, as the experts proved to be on the trial of this case. But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff’s discovery of the relevant facts about injury. Id. at 123-124, 100 S.Ct. at 360 (footnote omitted). It appears to us that the plaintiff in Kubrick had a stronger position in his contention as to the construction of the Federal Tort Claims Act than does Ms. Galarza in the instant case. It is more plausible to argue that the word “claim” includes the notion of negligence or malpractice than, as is argued here, the word “damage” includes such notion. We therefore agree with Dr. Zagury’s contention that “damage” within the meaning of this statute does not include the presence of negligence or malpractice and that Ms. Galarza incurred “damage” if her sphincter muscle was lacerated during surgery causing her incontinence. We, however, disagree with Dr. Zagury that, on the record presented on his motion for summary judgment, it was without dispute that Ms. Galarza learned or should have learned on June 9, 1978 that her incontinence was due to injury to the sphincter muscle done during surgery. The document upon which Dr. Zagury relies to establish such knowledge or notice is not a part of the record in this case. Accordingly, we conclude that the district court erred in granting summary judgment to Dr. Zagury. The judgment of the district court is therefore vacated and the cause is remanded for further proceedings not inconsistent with this opinion. . The district court, although it did not so state, obviously treated the motion to dismiss as a motion for summary judgment as is permitted by Rule 12(b), Fed.R.Civ.P. . This certificate, however, is not a part of the record in this case. . See footnote 2. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_district	H	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". John T. DIRRING, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. No. 6760. United States Court of Appeals First Circuit. Jan. 10, 1967. Richard E. Floor, Boston, by appointment of the Court, for appellant. Albert F. Cullen, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. Petitioner Dirring and one Gleason were tried twice on a two count indictment for planning and executing the robbery of a national bank in Avon, Massachusetts. The first trial ended in a “hung jury” — the second in verdicts of guilty. Following sentence, Dirring appealed. We affirmed the conviction. Dirring v. United States, 328 F.2d 512 (1st Cir. 1964), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (Dirring I). From time to time since his conviction, petitioner has sought various post-conviction remedies, among them four motions for new trial. These motions were denied — the last two without a hearing. From the denial of the last one, petitioner appealed pro se to this court. We affirmed the order of the district court. Dirring v. United States, 353 F.2d 519 (1st Cir. 1965), (Dirring II). A few months later he was back in the district court — again pro se — this time with the instant motion to vacate sentence under 28 U.S.C. § 2255. Submitted with it were several lengthy affidavits in support of the numerous grounds alleged. The district court denied this motion without a hearing and for the third time in as many years petitioner appeals to us seeking redress of his alleged grievances. This appeal was taken pro se but later, at petitioner’s request, we assigned counsel. The basic issue on appeal is whether the district court erred in denying the petitioner a hearing on the issues raised by his § 2255 motion. All but two of the grounds for relief set forth in this motion have already , been fully reviewed by this court in Dirring I and II and were found to be without merit. On a motion to vacate sentence (or judgment) we will not re-review grounds for relief previously considered and determined. As to these grounds, petitioner is not entitled to another review. D’Ercole v. United States, 361 F.2d 211, 212 (2d Cir. 1966); Frye v. United States, 337 F.2d 385, 386 (7th Cir. 1964), cert. denied, 380 U.S. 925, 85 S.Ct. 927, 13 L.Ed.2d 810 (1965). Although the strict doctrine of res adjudicata does not apply to § 2255 motions, it is firmly settled that issues disposed of on a prior appeal will not be reviewed again by way of such a motion. Grene v. United States, 360 F.2d 585, 586 (5th Cir. 1966); Medrano v. United States, 315 F.2d 361, 362 (9th Cir.), cert. denied, 375 U.S. 854, 84 S.Ct. 114, 11 L.Ed. 2d 81 (1963). Indeed, an appeal from the denial of a § 2255 motion which attempts to raise again questions which had been previously determined may be dismissed as frivolous. Lipscomb v. United States, 312 F.2d 891, 892 (8th Cir.), cert. denied, 374 U.S. 810, 83 S.Ct. 1702, 10 L.Ed.2d 1034 (1963). The only new grounds for relief alleged in the instant motion are (1) that the trial judge prematurely and erroneously discharged the alternate juror before the second trial was concluded, and (2) that petitioner in being forced to trial a second time was subjected to double jeopardy in violation of his Fifth Amendment rights. As to the first, it appears that on the final day of the second trial, when it was evident the trial was about to conclude, the court stated that since all the regular jurors were present the alternate juror would no longer be needed and thereupon excused him. Thereafter two witnesses were called and examined briefly; followed by arguments of counsel and the court’s charge. The case was then given to the jury and verdicts of guilty were returned — all on the same day. Petitioner contends that under 24 (c) of the Fed.R.Crim.P. the alternate juror should not have been discharged until after the jury had retired to consider its verdict; that in excusing him prior to that time an illegally constituted jury resulted and by reason thereof all subsequent proceedings were in violation of his rights under the due process clause. We see no merit whatever in this contention. Under Rule 24(c) the selection of alternate jurors is entirely discretionary with the court. Neither party is entitled to alternate jurors as a matter of right. The gist of petitioner’s double jeopardy argument is that the government, having put him to a trial .that ended in a hung jury and in which he alleges the government wrongfully suppressed certain evidence — which evidence could have tilted the divided jury in his favor — it thereby deprived him of his chance of acquittal. Hence he claims that the second trial for the same offense violated the Double Jeopardy Clause. From this he argues that the district court erred in denying his § 2255 motion without a hearing on the question of whether such evidence was in fact wrongfully suppressed at the first trial. In Dirring II petitioner made this same contention on substantially the same evidence under the guise of prosecutorial misconduct. There he related it solely to the second trial. In that case we specifically found there was no valid factual basis for this contention and dismissed it as being without merit. Thus we are faced with but another aspect of the same factual situation which has twice been fully reviewed by this court. Petitioner attempts to bolster this latest contention with new affidavits. We have carefully examined these affidavits and find that the factual situation is still not adequately presented. Although we have previously advised petitioner of the inappropriateness of hearsay affidavits, see Dirring II, supra; cf. United States v. Pisciotta, 199 F.2d 603 (2d Cir. 1952), he still persists in resorting to them. In support of his claim of prosecutorial misconduct he submits two affidavits, one by his former co-defendant Gleason and the other by a fellow inmate, stating they had been told by two government witnesses in the first trial that government counsel had coerced them not to change their grand jury identification of petitioner — which they had wished to do. These affidavits are pure hearsay. We can well understand that petitioner does not enjoy his incarceration. However, a § 2255 proceeding is a collateral remedy available to a petitioner only when some basic fundamental right is denied, and not as a routine review at the behest of a defendant who is dissatisfied with his sentence. Although we conceive it to be our duty to guard zealously the rights of defendants in criminal cases, we think the time has come to admonish the petitioner in this case that he can no longer expect to presume upon the time and patience of this court with successive groundless appeals. The motion and the files and records of this case conclusively show that this petitioner is entitled to no relief and in our opinion the district court was correct in dismissing his § 2255 motion without a hearing. Affirmed. . Dirring received concurrent sentences of five and twenty years which he is now serving. . The bank was robbed by two masked men. The principal question then before us was whether there was sufficient evidence for the jury to find that Dirring was one of them. We held that there was sufficient evidence. . He also appealed from the denial of motions for assignment of counsel and for compulsory process to witnesses which were filed with this motion and were denied without hearing at the same time. . He calls it a motion to vacate judgment. By whatever name, we regard it as a § 2255 motion to vacate sentence. . At the same time the court also denied several related motions without a hearing but granted petitioner leave to file and proceed in forma pauperis. . At the time petitioner moved in this court for assignment of counsel he had already submitted his brief pro se. The attorney we assigned to represent him filed a supplemental brief and based his oral argument on both briefs. . Section 2255 provides that “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall * * * grant a prompt hearing # * * » . This includes petitioner’s complaint that he was wrongfully denied counsel on his fourth motion for a new trial. This point was adequately covered in Dirring II and we see no need to re-examine it. . Petitioner argues that the prosecutor deliberately failed to disclose at the first trial that two prosecution witnesses who had identified him from a police “mug shot” at the hearing before the grand jury wanted to repudiate this identification. There were two other allegations of suppression of evidence by the prosecutor relating to petitioner’s alibi but he did not brief or argue one and waived the other for the purpose of this appeal. Therefore we do not consider them. . See footnote 9. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
sc_caseorigin	087	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. SILESIAN-AMERICAN CORP. et al. v. CLARK, ATTORNEY GENERAL, AS SUCCESSOR TO THE ALIEN PROPERTY CUSTODIAN. No. 6. Argued May 1, 1947. Reargued November 12, 1947. Decided December 8, 1947. Leonard P. Moore argued the cause for petitioners. With him on the briefs were George W. Whiteside and William Gilligan. James C. Wilson argued the cause on the original argument for respondent. With him on the brief were Acting Solicitor General Washington, Assistant Attorney General Sonnett, Harry LeRoy Jones, M. S. Isenbergh, James L. Morrisson and John Ward Cutler. James L. Morrisson reargued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Bazelon and M. S. Isenbergh. Me. Justice Reed delivered the opinion of the Court. The Alien Property Custodian on November 17, 1942, executed Vesting Order No. 370. This order was issued under the authority of the Trading with the Enemy Act, 40 Stat. 411, as amended, and Executive Order No. 9095, as amended, and in terms vested the property therein described in the Alien Property Custodian in the interest and for the benefit of the United States. The order found the property to belong to a national of Germany. The property covered by the order was two blocks of stock — one common, one preferred — in the Silesian American Corporation, a Delaware corporation, hereinafter called Silesian. The stock, prior to August 31, 1939, stood in the stock book of Silesian in the name of Non Ferrum Gesellschaft zur Finanzierung von Unternehmungen des Bergbaues und der Industrie der Nichteisenmetalle, Zurich, Switzerland, a Swiss corporation, hereinafter referred to as the Non Ferrum Company. Non Ferrum, it was determined by the Custodian’s order, held the stock for the benefit of Bergwerksgesellschaft Georg von Giesche’s Erben, a German corporation. The certificates, it is asserted, had been deposited as security for loans with a group of banks, all of which apparently were chartered by Switzerland and are hereinafter referred to as the Swiss Banks. To carry out the purpose of his vesting order, the Custodian directed Silesian to cancel on its books the outstanding Non Ferrum certificates, above referred to, and to issue in lieu thereof new certificates to the Custodian. This controversy revolves around the objection of Silesian so to act because the Custodian did not have physical possession of the pledged Non Ferrum certificates so as to be able to surrender them for cancellation, as the corporation’s by-laws required. Silesian feared liability to the holders of the Non Ferrum certificates for issuing other certificates in such circumstances. Silesian had been a debtor under Chapter X of the Bankruptcy Act since July 30, 1941. It therefore asked the Bankruptcy Court for instructions as to its compliance with the Custodian’s direction. The other petitioner here, Silesian Holding Company, a Delaware corporation also, appeared and throughout has remained as a party to this litigation. It is the majority stockholder of Silesian but claims no different or other interest in the issue than Silesian. For the purpose of this case, it may and will be treated as having no more interest in the issue than Silesian has. The Swiss Banks asked the Reorganization Court to give instructions to the Debtor that no new shares be issued until the controversy between the Swiss Banks and the Custodian could be “fully, firmly and finally adjudicated.” This prayer was based on a verified answer to Silesian’s request for instruction, which answer alleged that the “Swiss Banks were the owners of the 'Non Fer-rum’ stock.” The Swiss Banks notified Silesian that any issue of new certificates representing the Non Ferrum stock, with or without court direction, would be at Silesian’s risk. Affidavits supporting the objection of the Swiss Banks to instructions to Silesian to issue the new certificates to the Custodian were filed with the District Court. These affidavits declared the Non Ferrum stock was pledged, prior to 1938, to groups of Swiss banks. It is not clear whether they are the same institutions that are named in the answer of the Swiss Banks to the Debtor’s request for instructions. For the purpose of this case, we assume that the groups are identical. The District Court instructed the debtor to issue new certificates to the Alien Property Custodian. The court said: “The vesting order of the Custodian found that the stock was held for the benefit of an enemy. The statutory discharge from liability, § 5b or § 7e, [Trading with the Enemy Act] protects the debtor corporation and relieves it of doubt in the premises.” The court added: “Whatever may be the interests or rights of the Swiss banks, they cannot be considered here. Hearsay statements, unsupported by documents, allege that these banks are pledgees of the stock. These statements create no issue for our consideration. The banks are parties herein only to the extent that they have been recognized in the reorganization proceeding as possible owners of a claimed interest which they have never been called upon to prove. They are not here because of any action taken against them or any recognition given them by the Custodian or even by reason of any established interest in the stock.” No appeal to the Circuit Court of Appeals was taken by the Swiss Banks. They do not appear here as parties to this writ of certiorari or otherwise. We therefore express no opinion as to the effect of the order and decision of the District Court upon the claims of the Swiss Banks as pledgees of the Non Ferrum stock. See SilesianAmerican Corporation v. Markham, 156 F. 2d 793, 795. An appeal was taken to the Circuit Court of Appeals by Silesian. That court affirmed the order of the Bankruptcy Court. We first denied a petition for certiorari and then granted it so that this case might be considered in relation to other issues, thereafter presented here, in connection with the administration of the Trading with the Enemy Act. 329 U. S. 730 and 330 U. S. 852; Clark v. Uebersee Finanz-Korporation, 330 U. S. 813. It was held by the Circuit Court of Appeals that Silesian had no “standing vicariously” to assert the interests of its shareholders. We agree. Silesian has no legal interest in the issue as to the ownership of its stock. It follows that Silesian has no standing to represent the interests of the pledgees of the Non Ferrum shares, if that is the present position of those shares. See Anderson Nat. Bank v. Luckett, 321 U. S. 233, 242. This reduces petitioners’ objection to the order directing the issue of new certificates in favor of the Custodian for the Non Ferrum stock to the claim that the sections of the Trading with the Enemy Act under which the Custodian acted are invalid as applied to Silesian in these circumstances. If the provisions do not authorize the order and direction, Silesian, over its own objections, cannot be compelled to obey. The Custodian vested the stock in himself by virtue of the Trading with the Enemy Act, as amended by the First War Powers Act of 1941, including, of course, § 5 (b) (l), and Executive Order No. 9095, C. F. R. Cuna. Supp. 1121, as amended 1174. This property was vested during war. There is no doubt but that under the war power, as heretofore interpreted by this Court, the United States, acting under a statute, may vest in itself the property of a national of an enemy nation. Unquestionably to wage war successfully, the United States may confiscate enemy property. United States v. Chemical Foundation, 272 U. S. 1, 11. Nor can there, we think, be any doubt that any property in this country of any alien may be summarily reduced to possession by the United States in furtherance of the war effort. Every resource within the ambit of sovereign power is subject to use for the national defense. This section was amended during war to cover the taking of alien property. It is limited to a war or a declared emergency period. While a natural hesitancy exists against so interpreting the war power clause as to expand its scope to cover incidents not intimately connected with war, we think reasonable preparation for the storm of war is a proper exercise of the war power. This seizure of alien property, in a time of emergency, is of that character. We need not consider whether the general welfare clause could be a source of congressional power over alien property. This taking may be done as a means of avoiding the use of the property to draw earnings or wealth out of this country to territory where it may more likely be used to assist the enemy than if it remains in the hands of this government. Or the commandeered property of a friendly alien may be used to prosecute the war. The problems of compensation may await the judicial process. Central Union Trust Co. v. Garvan, 254 U. S. 554, 567-68. War brooks no delay. The Constitution imposes none. The section, 5 (b) (1), and Executive Order under which the Custodian acted authorized the vesting in him by his order of the property of a foreign national. This description covered stock ownership of a foreign national in Silesian. The fact that the certificates did not come into the hands of the Custodian is immaterial. They are evidences of the property right of the foreign national in Silesian that is subject to be vested in the Custodian by the Act. See Great Northern R. Co. v. Sutherland, 273 U. S. 182. Section 5 (b) (1) specifically states, “and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes.” See note 2 above. Since the Custodian was authorized to vest and to sell the property by § 5, we think that the power to require the issue of new certificates was incidental to that authority. As one purpose of § 5 (b) (1) was to authorize the seizure of the interests of foreign nationals in domestic corporations so that such interest could be used or sold, such authority to participate in management or to transfer the stock interests would be frustrated if customary evidences of the ownership could not be required from the corporation. The power of the Custodian to demand the certificates is plain. The correlative duty to obey the order equally so, if the effect of obedience does not do violence to other valid requirements of the statute or make Silesian liable to bona fide holders of the old stock. Silesian in specific terms is protected from any liability to bona fide holders such as Non Ferrum or the Swiss Banks by reason of any infirmity in the Custodian’s vesting order or his direction to Silesian to issue new certificates for the Non Ferrum stock. The applicable language of § 7 (e) of the Trading with the Enemy Act, 40 Stat. 418, and § 5 (b) (2), as amended, 55 Stat. 839-40, are set out in the margin. But Silesian argues that protection cannot follow from an order contrary to the Trading with the Enemy Act. The order to issue the new certificates is said to be unauthorized because it allows the property of friendly alien pledgees, the Swiss Banks, to be taken contrary to § 8 (a). Section 8 (a) is said to be a limitation on the Custodian’s power to seize property pledged to “any person not an enemy or ally of enemy.” It is suggested that if § 7 (e) or § 5 (b) (2) is interpreted to require Silesian to carry out the Custodian’s direction, even though this seizure is contrary to § 8 (a), a way has been found to “coerce an interested party [Silesian] into compliance with his [the Custodian’s] unlawful actions.” The answer to this contention is made by the Circuit Court of Appeals. It makes unnecessary any discussion of the protection afforded Silesian by § 7 (e) and § 5 (b) (2) from the claims of a pledge of stock exempted by statute from seizure. 156 F. 2d at 797. When § 5 (b) (1) was enacted as an amendment in the First War Powers Act of 1941, it authorized the taking of any property or interest therein of any foreign national. This broadening of the scope of the Custodian’s power to vest so as to include interests of friendly aliens in property includes the power to vest the interest which friendly aliens have from pledges. As the Circuit Court of Appeals said, p. 797: “Any other interpretation of the section would make the pledges of friendly aliens a wholly irrational exception to the general purpose to subject all alien interests to seizure.” Therefore, as we hold that § 5 (b) (1) rendered § 8 (a) inapplicable to the property of friendly aliens, the order of the Custodian was valid and Silesian’s objection disappears. Finally there is the argument that Silesian cannot be compelled to issue the new certificates because the friendly aliens who claim interests in the Non Ferrum stock may not succeed in recovering the just compensation for the taking. See Russian Volunteer Fleet v. United States, 282 U. S. 481, 489. The Constitution guarantees to friendly aliens the right to just compensation for the requisitioning of their property by the United States. Russian Fleet v. United States, supra. We must assume that the United States will meet its obligations under the Constitution. Consequently, friendly aliens will be compensated for any property taken and Silesian is protected by the exculpatory clauses of the Act from any claim from its alien stockholders. Judgment affirmed. The Chief Justice took no part in the consideration or decision of this case. They are Union Bank of Switzerland, La Roche & Company, Banque Cantónale de Berne, and Aktiengesellschaft Leu & Company. Trading with the Enemy Act, 40 Stat. 411, as amended by the First War Powers Act of 1941, 55 Stat. 839, § 5 (b) (1): “During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise— “(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest, by any person, or with respect to any property, subject to the jurisdiction of the United States; and any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President, in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States, and such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes; . . . .” Art. I, §8, cl. 11. Compare with the statement below: “The power of Congress to seize and confiscate enemy property rests upon Art. 1, § 8, Clause 11 of the Constitution. Stoehr v. Wallace, supra, 255 U. S. at page 242 . . . ; United States v. Chemical Foundation, Inc., 272 U. S. 1, 11 ... . Whether it exists at international law may be doubted; but nobody contends that the war power of Congress includes the seizure of the property of friendly aliens. The amendment of § 5 (b) must therefore rest upon some other power of Congress, not only for that reason, but because the amendment itself was expressly not limited to time of war (although it was in fact passed flagrante bello) but was to go into effect upon any ‘national emergency declared.’ It can rest upon Art. 1, § 8, Clause 1: i. e. upon the power ‘to provide for the common Defence and general Welfare’; indeed, so far as we can see, the debtor does not challenge the power itself, but its exercise. It complains that the amendment delegates an unrestricted discretion to the President, and does not provide ‘just compensation’ for seizures.” 156 F. 2d 793, 796. 40 Stat. 418, § 7 (e): “No person shall be held liable in any court for or in respect to anything done or omitted in pursuance of any order, rule, or regulation made by the President under the authority of this Act.” 55 Stat. 840, § 5 (b) (2): “Any payment, conveyance, transfer, assignment, or delivery of property or interest therein, made to or for the account of the United States, or as otherwise directed, pursuant to this subdivision or any rule, regulation, instruction, or direction issued hereunder shall to the extent thereof be a full acquittance and discharge for all purposes of the obligation of the person making the same; and no person shall be held liable in any court for or in respect to anything done or omitted in good faith in connection with the administration of, or in pursuance of and in reliance on, this subdivision, or any rule, regulation, instruction, or direction issued hereunder.” 40 Stat. 418-19, § 8 (a): “That any person not an enemy or ally of enemy holding a lawful mortgage, pledge, or lien, or other right in the nature of security in property of an enemy or ally of enemy which, by law or by the terms of the instrument creating such mortgage, pledge, or lien, or right, may be disposed of on notice or presentation or demand . . . may continue to hold said property, and, after default, may dispose of the property .... Provided further, That if, on any such disposition of property, a surplus shall remain after the satisfaction of the mortgage, pledge, lien, or other right in the nature of security, notice of that fact shall be given to the President pursuant to such rules and regulations as he may prescribe, and such surplus shall be held subject to his further order.” The Circuit Court of Appeals said: “Thus it can be argued with much force that, unless some provision can be found by which he may secure compensation, § 5 (b) is unconstitutional; and, if so, it would at best be doubtful whether the protection given by subsection (2) would be valid.” 156 F. 2d 793, 797. Question: What is the court in which the case originated? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims 212. United States Supreme Court Answer:
songer_app_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. UNITED STATES of America, Appellee, v. Sinclair D. SMALL, Appellant. No. 383, Docket 31069. United States Court of Appeals Second Circuit. Submitted March 23, 1967. Decided April 14, 1967. Herbert S. Siegal, New York City, for appellant. John R. Bartels, Jr., Asst. U. S., Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, New York City, John A. Stichter, Asst. U. S. Atty., New York City, of counsel), for appellee. Before MOORE and HAYS, Circuit Judges, DOOLING, District Judge. Sitting by designation, from the Eastern District of New York. PER CURIAM: Appellant was convicted on two counts of receiving and concealing narcotics in violation of 21 U.S.C.A. §§ 173 and 174. At trial, narcotics seized at the time of his arrest, and narcotics seized shortly thereafter from his apartment pursuant to a warrant were received in evidence against him. Upon a pretrial motion, appellant sought to suppress the narcotics. After a hearing, the motion was denied. Appellant claims on appeal that it was error to deny his motion because: (1) the search warrant for his apartment was based on a false affidavit and hence invalid; and (2) there was no probable cause for the arrest. These claims grow out of a single alleged inconsistency in the testimony of agent Antonelli at the suppression hearing. Antonelli testified that he was first alerted to the activities of appellant by an informant who, in late July of 1965, told Antonelli, among other things, the make, model and license number of appellant’s car. Antonelli also testified that he confirmed that information through the New York State Bureau of Motor Vehicles in early August, 1965. On cross examination, it was revealed through an exhibit that the permanent registration for the car bearing that license number was not issued until September 3, 1965. The search warrant was issued on the affidavit of agent Antonelli, alleging information received: (1) by personal observation; (2) from an informant in November of 1965 (a different informant from the July informant); (3) from the records of Consolidated Edison; and (4) from the files of the F.B.I. The testimony of agent Antonelli at the suppression hearing established that he personally had observed appellant intermittently during the months of August, September, October, November and December of 1965. The observed activities together with the information received (and subsequently corroborated) from the November informant established probable cause for the arrest. It is apparent that the alleged inconsistency described above could undermine the warrant and the arrest only by rendering Antonelli totally unbelievable as an affiant and a witness. Antonelli’s credibility was a question for the judges below who observed his testimony. We refuse to say that a single apparent inconsistency will render everything that a witness says unbelievable as a matter of law. Affirmed. 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_majvotes	3	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. TICONIC NAT. BANK OF WATERVILLE, ME., et al. v. SPRAGUE et al. No. 3192. Circuit Court of Appeals, First Circuit. Jan. 15, 1937. F. Harold Dubord, of Waterville, Me., for appellants. Harvey D. Eaton, of Waterville, Me., for appellees. Before BINGHAM, WILSON, and MORTON, Circuit Judges. PER CURIAM. We are of the opinion that the decree of the District Court is correct except in so far as it allows'interest; that in allowing interest from July 30, 1935 (the date of the bringing of the bill of complaint), the court erred. The decree of the District Court is modified by striking therefrom the words “with interest from July 30, 1935,” and so modified is affirmed, with costs to the appellees in this court. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:

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